Gilliam v Uni holdings, 2021 NY Slip Op 06798 (1st Dept. 2021)
Oh, I have wanted to type this on a legal blog that has nothing to do with the Mississippi debacle that the US Supreme Court and the GOP have welcomed with open arms but will leave them all with forlorn results.
(1) “The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.”
(2) “It should also be noted that defendant has mischaracterized the nature and role of “independent” MEs in personal injury litigation, presumably to cast plaintiff’s surgery as an egregious and sanctionable act. Such examinations “far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all” (Bazakos v Lewis, 12 NY3d 631, 638 [2009] [Lipman, Ch. J., dissenting]). Viewed in this context, an ME is simply one piece of evidence in a personal injury action.”
(3) “Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.
(4) Thus, plaintiff’s pre-ME spine surgery did not result in the spoliation of evidence. Defendant’s categorization of the plaintiff’s surgery as “non-emergency” does not alter this conclusion.
(5) In addition, defendant was not “prejudiced” by plaintiff’s medical treatment, as there is other evidence upon which defendant may rely, including plaintiff’s pre-surgical and post-surgical medical records.
The whole early IME thought process has not been case aside.
