Abdelfattah v Trevicano,2022 NY Slip Op 02383 (2d Dept. 2021)
“The defendants moved, inter alia, to direct the plaintiff to comply with the July 2019 [*2]order by submitting to additional medical examinations by specialists of defense counsel’s choosing. The plaintiff opposed, contending that the defendants could not direct the plaintiff to submit to a medical examination by a second expert. In the order appealed from, dated December 16, 2019, the Supreme Court, inter alia, granted the defendants’ motion to the extent of directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff. The defendants appeal from so much of the order as required them to designate Dr. Miller as the doctor who would perform the additional examination.
CPLR 3121(a) provides that where the physical condition of a party is in controversy, “any party may serve notice on another party to submit to a physical . . . examination by a designated physician.” There is no restriction in CPLR 3121(a) limiting the number of medical examinations. However, a defendant seeking an additional medical examination must demonstrate the necessity for it (see Harris v Christian Church of Canarsie, Inc., 147 AD3d 818, 818). A plaintiff may challenge a defendant’s choice of an examining physician based upon a claim of bias against the plaintiff or his or her attorney by the designated examining physician or prejudice against the plaintiff if that examining physician is allowed to testify at trial (see Lewis v John, 87 AD3d 564, 565).
Here, the plaintiff does not dispute the need for an additional medical examination. However, the plaintiff has demonstrated that he would be prejudiced by permitting a second board-certified physician to examine the same part of his body and to produce a second defendants’ medical examination as to the same physical condition that was reported on by Dr. Miller before the spinal fusion, which would enable the defendants to have a second physician of the same specialty testify against the plaintiff for the same physical injury (see Vailes v Molloy College, 2019 NY Slip Op 33931[U], *3 [Sup Ct, Nassau County]; Ocampo v City of New York, NYLJ 1202573727112 [Sup Ct, Queens County]).
Moreover, the defendants have not demonstrated the necessity for permitting the additional medical examination to be performed by a physician other than Dr. Miller, a board-certified orthopedic surgeon. The plaintiff notified the defendants of his allegation that he needed spinal surgery in his bill of particulars dated October 12, 2017, which was served before the defendants chose Dr. Miller to conduct the first medical examination. The defendants did not provide any reason that it was necessary for a different physician to conduct the additional medical examination after the spinal surgery. Since the plaintiff has demonstrated that under the circumstances presented here, permitting an additional orthopedic surgeon to examine and produce a second defendants’ medical examination report on the same body part previously examined by the defendants’ initially selected orthopedic surgeon, who could then testify at trial, would result in prejudice against him, the Supreme Court providently exercised its discretion in directing the plaintiff to submit to a medical examination by Dr. Miller, who previously examined the plaintiff.”
This has a direct application to PIP. The reasons being that it is often the case that PIP orthos testify in a BI trial. It therefore begs the question whether it is proper to have multiple othopedists perform an IME on an Assignor.
On a pure PIP side, the occurrence could happen where multiple exams become necessary, and should a carrier have the opportunity to show case the findings of two board certified ortho that lead to the conclusion further treatment is not warranted or that the EIP has reached their pre accident condition?
