The importance of the defendants' physical examinations of the plaintiff claiming injury in a medical malpractice case should not be underestimated. Occasionally, the permanent injury claimed by the plaintiff has resolved, or the records of treatment do not focus on the facts important in her lawsuit. Where a patient has multiple comorbidities which affect his work or life expectancy, the damages for injuries claimed to be permanent may vary from what would be the case for the statistical person represented by the actuarial tables in the Pattern Jury Instructions.

Availability of Physical Examinations

The statutory basis for obtaining physical examinations is stated in broad terms in CPLR §3121, which permits the defendant to obtain physical examinations whenever “physical condition” is affirmatively placed in controversy. The statute's reference to physical condition does not limit the examination to the claimed injury but takes the broader view that other aspects of the plaintiff's condition may have a direct bearing on the liability claims, the question of causation, or the issues of damages. There is no restriction in CPLR §3121 “limiting the number of physical or mental examinations to which a party may be subjected.” Huggins v. NYCTA, 225 A.D.2d 732 (2d Dep't 1996). Examinations by doctors in several different specialties may be obtained where the first examiner supports the need for evaluation by other specialties (see Carden v. Callocchio, 100 A.D.2d 608, 608 (2d Dep't 1984)), and examinations by the same examiner may be warranted by the passage of time or change of circumstances following a first examination (see Huggins, supra, at 733). Where counsel for the plaintiff resists the request for multiple examinations and there are a number of participating defendants, cooperation among the defendants' attorneys with regard to both timing and specialty may overcome the difficulty in securing the full complement of examinations.

The location of the examination and choice of examiner are largely left to the discretion of the defense. This meant that in Chong v. N.Y. Downtown Hospital, 2012 Slip Op 32877[U], the plaintiff was ordered to pay the expenses of the defense examining physician's travel to Korea because the plaintiff was unable to return to the United States. As observed by the court in Chen v. Zhi, 109 A.D.3d 815 (2d Dep't 2013) (which cited the Chong decision with approval), the defense must be able to retain an examining physician in whom it has confidence to not only perform a valid examination, but also to appear as a trial witness.

Abrupt retirement (see Rosado v. A&P Food Stores, 26 Misc. 3d 935, 940 (Sup. Westchester 2009)) or death of the examining physician prior to trial (see Galdi v. Kaliya, 32 Misc. 3d 128A (App. Term 1st Dep't 2011)) have been found to constitute the unusual and unanticipated conditions warranting further physical examinations of the plaintiff, but the fact that the examiner has been disciplined or surrendered his license has been found insufficient (Giordano v. Zhen, 103 A.D.3d 774 (2d Dep't 2013)). It is also apparent that the conduct of the examining physician and/or defense counsel may be found to have effected a waiver of additional physical examinations. Sanchez v. Trevz Trucking, 124 A.D.3d 527 (1st Dep't 2015).

Process of Obtaining Physical Examinations

Section 202.17 of the Uniform Court Rules is specific regarding when and how the defense may obtain physical examinations. It also sets forth what the plaintiff must do in advance of the defendant's examinations. This is worth reading because the terms provided by the Uniform Court Rules are rarely written into the Preliminary Conference Order. The requirements are specific and adherence to their terms serves to narrow the issues for the defense physical examination and all future aspects of trial preparation.

Section 202.17(b) is of particular interest in that it requires that plaintiff's counsel provide all other parties with copies of the reports of all medical care providers who have previously treated or examined the party seeking recovery at least 20 days prior to the defense physical examination. The reports shall include a recital of what trial testimony the plaintiff will offer as to the injuries and conditions of the injured party, including diagnosis and prognosis. The Court of Appeals has ruled that this rule obligates the plaintiffs to obtain the information required from the examining and treating physicians whether or not the information is contained in existing reports. If the records of the treating and examining physicians do not include the information on the injuries and conditions, their diagnosis and prognosis, “the plaintiffs must have the medical providers draft reports setting forth that information.” Hamilton v. Miller, 23 N.Y.3d 592 (2014).

The rule also contains provisions requiring plaintiff to specify the X-ray and technician's reports which will be offered at trial, as well as authorizations allowing defense counsel to obtain the material relied on in producing the reports, but that is beyond the purview of this column. Even more stringent requirements are set forth for wrongful death cases, so the full impact of the somewhat lengthy rule cannot be appreciated unless it is read in its entirety.

Section 202.17(f) provides that the case may not be noticed for trial unless there has been compliance with the rule's requirements or an order dispensing with or permitting later compliance. The case may not be noticed for trial if the plaintiff has not responded to the defendant's notice of physical examination either. Under §202.17(h), no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, not will the court hear testimony of any treating or examining providers whose reports have not been served as provided by the rule. There are exceptions as there are for any such rule, but given the clear intent of the rule and the fact that it takes a specific order to avoid its application, it is surprising that the rule does not merit mention in most orders issuing from preliminary and compliance conferences in these cases.

Performance of the Physical Examination

It stands to reason that the examining physician should have some latitude in obtaining the history and performing those aspects of a complete medical or psychiatric examination which are appropriate to the disputed injuries, as well as the physical condition of the plaintiff insofar as it relates to the damages claimed. See Cooper v. McInnes, 2013 Slip Op 08322 (3d Dep't 2013), citing Derr v. Fleming, 106 A.D.3d 1240 (3d Dep't 2013)]. While X-rays and other invasive studies are routinely and repeatedly used in the diagnosis and surveillance of frequently encountered conditions, the plaintiff is able to refuse any invasive study which can be shown to pose any degree of danger or harm. Where the plaintiff refuses a minimally invasive diagnostic procedure which is the only means of objectively establishing the claimed condition, an interesting question is posed. What is the prima facie evidence of the claimed injury or disability where he/she has refused the only means of establishing its factual existence?

The right of the defense to obtain a thorough examination is also qualified by the right of the examined party to be represented by counsel at critical stages of the proceedings. Although the courts have repeatedly stated that the examining room should not be turned into a hearing room with lawyers and stenographers, the plaintiff is allowed to be represented by counsel at the defense examination to assure that the conversation does not intrude into impermissible areas. See Jakubowski v. Lengen, 86 A.D.2d 398, 401 (4th Dep't 1982). However, non-attorney representatives may be excluded from attending, (Kattaria v. Rosado, 146 A.D.3d 457 (1st Dep't 2017); but see Henderson v. Ross, 147 A.D.3d 915 (2d Dep't 2017)), and the intrusion by counsel for the plaintiff may be sharply circumscribed (Cooper, supra).

Stenographic recording may be permitted in very limited cases where counsel for the plaintiff shows special or unusual circumstances (Flores v. Vescera, 105 A.D.3d 1340 (4th Dep't 2013)), but video recording is generally not permitted (Vargas v. City of New York, 146 A.D.3d 917 (2d Dep't 2017)). It is distinctly frowned upon for any attorney to surreptitiously record a physical examination and then fail to disclose the video, precipitating a mistrial, an award of costs to the defense, and a new defense physical examination. Bermejo v. NYCHHC, 136 A.D.3d 116 (2d Dep't 2015).

Conclusion

The defense of a medical malpractice action is generally more quantitative if appropriate defense physical examinations are obtained according to the established procedures. Although it may be said that a physical examination of a claimant with an amputation is unnecessary because the examiner will only confirm the obvious, proceeding to trial without a physical examination leaves the defense poorly equipped to understand or litigate the issues of damages. It is better practice to appreciate this significant device for defending cases and put it to use for the defendants.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg is a partner at the firm and head of its appellate department.

The importance of the defendants' physical examinations of the plaintiff claiming injury in a medical malpractice case should not be underestimated. Occasionally, the permanent injury claimed by the plaintiff has resolved, or the records of treatment do not focus on the facts important in her lawsuit. Where a patient has multiple comorbidities which affect his work or life expectancy, the damages for injuries claimed to be permanent may vary from what would be the case for the statistical person represented by the actuarial tables in the Pattern Jury Instructions.

Availability of Physical Examinations

The statutory basis for obtaining physical examinations is stated in broad terms in CPLR §3121, which permits the defendant to obtain physical examinations whenever “physical condition” is affirmatively placed in controversy. The statute's reference to physical condition does not limit the examination to the claimed injury but takes the broader view that other aspects of the plaintiff's condition may have a direct bearing on the liability claims, the question of causation, or the issues of damages. There is no restriction in CPLR §3121 “limiting the number of physical or mental examinations to which a party may be subjected.” Huggins v. NYCTA , 225 A.D.2d 732 (2d Dep't 1996). Examinations by doctors in several different specialties may be obtained where the first examiner supports the need for evaluation by other specialties (see Carden v. Callocchio , 100 A.D.2d 608, 608 (2d Dep't 1984)), and examinations by the same examiner may be warranted by the passage of time or change of circumstances following a first examination (see Huggins , supra, at 733). Where counsel for the plaintiff resists the request for multiple examinations and there are a number of participating defendants, cooperation among the defendants' attorneys with regard to both timing and specialty may overcome the difficulty in securing the full complement of examinations.

The location of the examination and choice of examiner are largely left to the discretion of the defense. This meant that in Chong v. N.Y. Downtown Hospital , 2012 Slip Op 32877[U], the plaintiff was ordered to pay the expenses of the defense examining physician's travel to Korea because the plaintiff was unable to return to the United States. As observed by the court in Chen v. Zhi , 109 A.D.3d 815 (2d Dep't 2013) (which cited the Chong decision with approval), the defense must be able to retain an examining physician in whom it has confidence to not only perform a valid examination, but also to appear as a trial witness.

Abrupt retirement (see Rosado v. A&P Food Stores, 26 Misc. 3d 935, 940 (Sup. Westchester 2009)) or death of the examining physician prior to trial (see Galdi v. Kaliya , 32 Misc. 3d 128A (App. Term 1st Dep't 2011)) have been found to constitute the unusual and unanticipated conditions warranting further physical examinations of the plaintiff, but the fact that the examiner has been disciplined or surrendered his license has been found insufficient ( Giordano v. Zhen , 103 A.D.3d 774 (2d Dep't 2013)). It is also apparent that the conduct of the examining physician and/or defense counsel may be found to have effected a waiver of additional physical examinations. Sanchez v. Trevz Trucking , 124 A.D.3d 527 (1st Dep't 2015).

Process of Obtaining Physical Examinations

Section 202.17 of the Uniform Court Rules is specific regarding when and how the defense may obtain physical examinations. It also sets forth what the plaintiff must do in advance of the defendant's examinations. This is worth reading because the terms provided by the Uniform Court Rules are rarely written into the Preliminary Conference Order. The requirements are specific and adherence to their terms serves to narrow the issues for the defense physical examination and all future aspects of trial preparation.

Section 202.17(b) is of particular interest in that it requires that plaintiff's counsel provide all other parties with copies of the reports of all medical care providers who have previously treated or examined the party seeking recovery at least 20 days prior to the defense physical examination. The reports shall include a recital of what trial testimony the plaintiff will offer as to the injuries and conditions of the injured party, including diagnosis and prognosis. The Court of Appeals has ruled that this rule obligates the plaintiffs to obtain the information required from the examining and treating physicians whether or not the information is contained in existing reports. If the records of the treating and examining physicians do not include the information on the injuries and conditions, their diagnosis and prognosis, “the plaintiffs must have the medical providers draft reports setting forth that information.” Hamilton v. Miller , 23 N.Y.3d 592 (2014).

The rule also contains provisions requiring plaintiff to specify the X-ray and technician's reports which will be offered at trial, as well as authorizations allowing defense counsel to obtain the material relied on in producing the reports, but that is beyond the purview of this column. Even more stringent requirements are set forth for wrongful death cases, so the full impact of the somewhat lengthy rule cannot be appreciated unless it is read in its entirety.

Section 202.17(f) provides that the case may not be noticed for trial unless there has been compliance with the rule's requirements or an order dispensing with or permitting later compliance. The case may not be noticed for trial if the plaintiff has not responded to the defendant's notice of physical examination either. Under §202.17(h), no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, not will the court hear testimony of any treating or examining providers whose reports have not been served as provided by the rule. There are exceptions as there are for any such rule, but given the clear intent of the rule and the fact that it takes a specific order to avoid its application, it is surprising that the rule does not merit mention in most orders issuing from preliminary and compliance conferences in these cases.

Performance of the Physical Examination

It stands to reason that the examining physician should have some latitude in obtaining the history and performing those aspects of a complete medical or psychiatric examination which are appropriate to the disputed injuries, as well as the physical condition of the plaintiff insofar as it relates to the damages claimed. See Cooper v. McInnes , 2013 Slip Op 08322 (3d Dep't 2013), citing Derr v. Fleming , 106 A.D.3d 1240 (3d Dep't 2013)]. While X-rays and other invasive studies are routinely and repeatedly used in the diagnosis and surveillance of frequently encountered conditions, the plaintiff is able to refuse any invasive study which can be shown to pose any degree of danger or harm. Where the plaintiff refuses a minimally invasive diagnostic procedure which is the only means of objectively establishing the claimed condition, an interesting question is posed. What is the prima facie evidence of the claimed injury or disability where he/she has refused the only means of establishing its factual existence?

The right of the defense to obtain a thorough examination is also qualified by the right of the examined party to be represented by counsel at critical stages of the proceedings. Although the courts have repeatedly stated that the examining room should not be turned into a hearing room with lawyers and stenographers, the plaintiff is allowed to be represented by counsel at the defense examination to assure that the conversation does not intrude into impermissible areas. See Jakubowski v. Lengen , 86 A.D.2d 398, 401 (4th Dep't 1982). However, non-attorney representatives may be excluded from attending, ( Kattaria v. Rosado , 146 A.D.3d 457 (1st Dep't 2017); but see Henderson v. Ross , 147 A.D.3d 915 (2d Dep't 2017)), and the intrusion by counsel for the plaintiff may be sharply circumscribed ( Cooper , supra).

Stenographic recording may be permitted in very limited cases where counsel for the plaintiff shows special or unusual circumstances ( Flores v. Vescera , 105 A.D.3d 1340 (4th Dep't 2013)), but video recording is generally not permitted ( Vargas v. City of New York , 146 A.D.3d 917 (2d Dep't 2017)). It is distinctly frowned upon for any attorney to surreptitiously record a physical examination and then fail to disclose the video, precipitating a mistrial, an award of costs to the defense, and a new defense physical examination. Bermejo v. NYCHHC , 136 A.D.3d 116 (2d Dep't 2015).

Conclusion

The defense of a medical malpractice action is generally more quantitative if appropriate defense physical examinations are obtained according to the established procedures. Although it may be said that a physical examination of a claimant with an amputation is unnecessary because the examiner will only confirm the obvious, proceeding to trial without a physical examination leaves the defense poorly equipped to understand or litigate the issues of damages. It is better practice to appreciate this significant device for defending cases and put it to use for the defendants.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg is a partner at the firm and head of its appellate department.