In personal injury lawsuits, it is often the case that a plaintiff will undergo surgery during the course of litigation, without giving any prior notice to the defendants. Whether unintentional, or tactical, two decisions in the Supreme Court, including one issued earlier this year, may serve to change this practice, at least in cases where the defendants have demanded the right to conduct a presurgical independent medical examination (IME). Indeed, based on Mangione v. Jacobs and Martinez v. Nelson, the decision to ignore a defendant's request for a presurgical IME and proceed to surgery without first appearing for an exam can have serious consequences for a plaintiff, up to and including dismissal of the lawsuit on the basis of spoliation of evidence.

Concealing an upcoming surgery from the defendants in a personal injury action can yield certain clear benefits for the plaintiff. If the defendants are aware of an upcoming surgical procedure, particularly a complex or invasive procedure, they may seek a presurgical IME by a retained defense expert physician. The defense expert physician, aided by a presurgical IME, will be in a position to offer an opinion based upon the plaintiff's presurgical condition. As a result, the expert physician has the ability to opine as to whether surgical intervention is medically necessary. The physician will also have an opportunity to determine whether plaintiff's physical condition prior to surgery accurately correlates with claims made in the records of the plaintiff's treating physicians. However, if the plaintiff proceeds to surgery without notifying the defendants, an opportunity in this respect is lost for the defendants. At best, the defense expert physician can say that based upon a later examination of plaintiff, occurring after the surgical procedure was already done, and a review of the plaintiff's medical records, that surgery was not indicated.

The opportunity lost when a presurgical IME is not conducted is most apparent during cross-examination of the defense expert physician at trial. The defense expert physician, without the aide of a pre-surgical IME, potentially faces a line of questioning that calls into doubt their entire opinion. In a case where no presurgical exam occurred, at trial, plaintiff's counsel may ask: "Doctor, did you examine the plaintiff before his surgery?" And the doctor must answer "No." The doctor is still free to opine that the procedure was not necessary or perhaps other less invasive options were available to the plaintiff. However, the defense physician's opinion is much stronger if the physician had the opportunity to examine the plaintiff beforehand and include the prior examination as part of the formulation of an opinion as to the overall need for surgery and whether or not more conservative options were available or indicated.

A plaintiff's failure to notify defendants of an upcoming surgery also adds to defense costs. Often defendants will learn about a recent surgical procedure while deposing the plaintiff. Of course, when this happens, defense counsel will need access to further medical records before plaintiff's deposition can be completed. What might have been a single day of deposition, will become multiple days, adding time and cost to the litigation.

'Mangione'

The problem of surprise surgeries in litigation is not a new problem. What has never been clear is what recourse a defendant has when a presurgical IME is sought, but plaintiff ignores the request and proceeds to surgery without first appearing for the IME. In Mangione v. Jacobs, 37 Misc.3d 711 (Sup. Ct., Queens County 2012), the Justice Charles J. Markey, noted that the concept of whether a defendant could obtain spoliation sanctions against a plaintiff, where the plaintiff failed to appear for a presurgical IME, was "an issue of first impression." In Mangione, plaintiff was allegedly injured in an automobile accident. At both a preliminary conference and a later compliance conference, plaintiff was directed to appear for an IME, which was actually scheduled by the defendants and adjourned by the plaintiff on three occasions. Instead of attending the IME, which had been court ordered on multiple occasions, plaintiff proceeded to have spinal surgery. The defendants took the position that "not going to IMEs prior to the surgery, despite three court orders, constituted the intentional spoliation of evidence warranting the most stringent sanction of dismissal." Id.

The court examined the purpose of spoliation sanctions in detail and noted that spoliation sanctions, as explained by the Second Circuit Court of Appeals in Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001), serve three general purposes: "(1) deterring parties from destroying evidence; (2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation." Id. The court then examined a similar case from Delaware, where a court had dismissed a plaintiff's case where the plaintiff underwent elective surgery, without first appearing for an IME. The court in Clark v. E.I. DuPont de Nemours & Co. C.A. No. 97C-12-048-PLA, 2001 Del. Super. LEXIS 453 (Super. Ct. Oct. 11, 2001), found that defendants had been irreparably prejudiced by plaintiff's conduct and dismissed the case, but did not specifically base the opinion on a theory of spoliation of evidence.

After an extensive review of all possible sanctions, Justice Markey, for the first time in New York, granted a defendant spoliation sanctions arising out of plaintiff's failure to attend court ordered IMEs before proceeding with non-emergent surgery. After reviewing all lesser possible sanctions, the court determined that the conduct of plaintiff warranted the most severe sanction and issued an order dismissing plaintiff's complaint. The case proceeded to an appeal, where the Second Department affirmed. Mangione v. Jacobs, 121 A.D.3d 953 (2d Dept. 2014). The affirmance does not specifically examine the imposition of sanctions based upon spoliation, but rather, focuses on the multiple violated court orders as a sufficient basis for dismissal; though the Appellate Division does observe that the trial court, in part, based dismissal on the fact that plaintiff had "destroyed evidence by intentionally undergoing surgery before she had submitted to the IMEs that had been scheduled by the defendants." Id. At the very least, the Appellate Division has tacitly approved the use of spoliation sanctions in a scenario where plaintiff does not attend a court ordered IME and then subsequently has a surgical procedure without first appearing for the IME.

'Martinez'

In a case decided earlier this year, Acting Justice John R. Higgitt issued a decision in Martinez v. Nelson, 64 Misc.3d 225 (Sup. Ct. Bronx County 2019), which further expanded the concept that defendants are entitled to spoliation sanctions where a plaintiff fails to attend a presurgical IME and then has surgery before being examined by the defendant's physician(s). In Martinez, the court noted that the record before it was incomplete, but held: "the court concludes that spoliation sanctions may be imposed on a plaintiff who fails to submit to a so-called IME before having surgery on a body part that the plaintiff claims was injured as a result of a defendant's allegedly tortious conduct." The significance of Martinez is that, unlike the record in Mangione, the plaintiff had not violated multiple orders directing appearance at an IME, but rather, the defendants in Martinez had simply notified the plaintiff, by letter, of an intent to seek a presurgical IME. And while the Court directed further proceedings on the issue, its willingness to entertain spoliation sanctions in this context is significant.

For the defense bar, these decisions highlight the importance of placing plaintiffs on notice of an intent to seek presurgical IMEs, whenever there is any indication that surgery may be indicated or at all likely. For the plaintiffs' bar, the message is one of caution in that it is now clear that the decision to conceal a surgical procedure, particularly where defendants have sought a presurgical IME, could prove costly and may even result in the dismissal of the case.

Kenneth B. Danielsen is a partner in the New York and New Jersey offices of Kaufman, Dolowich & Voluck and is the co-chair of the firm's general liability defense practice group. Steven I. Heyligers is an associate in the firm's New Jersey office.