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.