Andrea M. Alonso and Kevin G. Faley Second Dept. Takes Charge: The Burden of Excluding Third-Party Observers
Eliminating ambiguity created in the First and Fourth Departments, the Second Department places the burden squarely on defendants for the exclusion of 'IME Watchdogs.'
February 26, 2021 at 10:25 AM
9 minute read
New York CPLR §3121 permits an opposing party to require a plaintiff to submit to an independent examination by a designated physician. This Independent Medical Examination (IME) serves an important function. "[P]hysical examinations [narrow], if possible, areas of medical dispute through the assistance of the medical profession, and [eliminate] most of the medical controversy in a personal injury case." Jakubowski v. Lengen, 86 A.D.2d 398, 400 (4th Dept. 1982).
It is an established principle that a plaintiff undergoing an IME is entitled to the presence of a legal representative hired by their attorney. Ponce v. Health Ins. Plan, 100 A.D.2d 963, 964 (2d Dept. 1984). This concept was reinforced in Cioffi v. S.M. Foods where the court stated "[f]or a court to deny plaintiff accompaniment of his choice, an attorney or representative sent by the attorney, is an infringement upon plaintiff's right to be assisted by counsel." Cioffi v. S.M. Foods, 2013 NY Slip Op 32579(U) (N.Y. Sup. Aug. 6, 2013).
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