New York Court Denied Defendant’s Request for “Independent” Medical Examination after Defendant Missed Deadline by One-year

As part of the personal injury civil system, discovery is a phase in litigation that prevents unfair surprises for all parties to a cause of action. The court system, including Federal and State courts, require disclosure of all relevant and material facts that pertain to the case, to be “disclosed,” to the other side prior to trial. This includes document production, depositions, interrogatories, and when necessary, “independent” medical examinations.

An independent medical examination, also known as an “IME,” is a discovery device, which allows a defendant in personal injury cases, to obtain an assessment of plaintiff’s injuries from a physician that has not previously treated the plaintiff. This discovery device, allows the defendant to obtain what is supposed to be an objective and neutral evaluation, rather than documents that have been produced by plaintiff’s personal health-care providers and/or physicians. Parties must comply with specific rules and deadlines in order to take advantage of such resources. See, NYCPLR §3121(a): Physical or mental examination.  “IME” is a term of art.  IME doctors are hired by the defendants and their insurance companies.  Therefore, there is a built in incentive for IME doctors to support the defense.  In many plaintiffs personal injury offices, these examinations are referred to as Defense Medical Examinations or “DME’s”.

In the Gianacopoulus v. Corona case, the plaintiff seeks to recover damages for personal injuries. On appeal, the issue was whether the Queens County Supreme Court correctly granted defendant’s renewed motion to compel the plaintiff to submit to an IME. The New York Appellate Division reversed the lower court’s decision holding that the defendant waived her right to conduct an IME, by failing to conduct such examination within the period of time stated in the compliance conference order.

Further, the Appellate Division held that the defendant had allowed more than one year to pass after the notice of issue was served and filed before moving to compel the plaintiff to submit to an IME. Under the New York Civil Practice Law and Rules (CPLR), a note of issue is a document to the court stating that the action is ready for trial. No action can move forward to trial without filing a note of issue along with a certificate of readiness. The note of issue is served upon all parties to the matter and subsequently filed with the appropriate clerk’s office. See, www.nycourts.gov for additional information.  It is important to note, however, a party may move to vacate a note of issue within 20 days after service of the notice of issue and certificate of readiness, showing that the action is not ready for trial. A court has the discretion to vacate the notice of issue if based on material facts or good cause.

Here, the note of issue was served and filed more than one year before the defendant renewed her motion to compel an IME. The court noted that the defendant moved to compel plaintiff to submit to an IME on the eve of trial. After having ample time to vacate the note of issue or make a motion to the court before trial, the defendant failed to do so.

As already mentioned, the court has discretion to vacate the note of issue and permit additional discovery after the note of issue has been filed and served. However, a court will only do so upon showing that “unusual or unanticipated circumstances” arose after filing the note of issue and that additional pretrial proceedings would be necessary in order to prevent substantial prejudice.  The Appellate Division found that the defendant failed to establish that unusual or unanticipated circumstances existed to justify the defendant’s failure to conduct a timely IME in accordance with the compliance conference order.

As such, the consequences here were costly to the defendant. The defendant’s motion to compel plaintiff to submit to an IME was denied.  As a result, no defense physician will have had the opportunity to assess the plaintiff’s injuries prior to trial.

Gianacopoulos v. Corona, 133 A.D.3d 565 (2nd Dept. 2015).

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