A staple of a personal injury action is the exchange and discovery of medical reports of a plaintiff’s medical history, treatment and diagnosis prepared by a physician following an examination of the plaintiff. Such reports will include reports prepared by the plaintiff’s treating physician, and reports prepared by a physician following an examination requested by a defendant pursuant to CPLR 3121, the so-called Independent Medical Examination (IME). As gauged by posts and ensuing discussions on various attorney-sponsored or maintained law blog sites on the Internet, there is considerable interest in the issue of the admissibility of an unaffirmed medical report on a summary judgment motion or at trial when it is contrary to the litigation position taken by the party who arranged or asked for the report.
This column will address the admissibility of an unaffirmed medical report of a plaintiff prepared at the request of a plaintiff/defendant and offered against that plaintiff/defendant. While an affirmed medical report is uniformly recognized as admissible on a summary judgment motion, there is sparse case law in New York discussing the admissibility of unaffirmed reports outside of serious injury threshold summary judgment motion cases. As a result, a rationale for their admissibility will be proposed, drawing upon scholarly commentary and decisions from other jurisdictions.
The Rule in ‘Pagano’
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