Articles & Publications 04.20.22

Compelling an In-Person Independent Medical Examination Amidst the COVID-19 Pandemic

The COVID-19 pandemic has created new issues in personal injury litigation that were not present prior to March of 2020, such as having independent medical examinations (“IME”) held in-person or virtually. Prior to the pandemic, having an IME held was commonplace with the expert conducting the routine examination in the presence of the Plaintiff and potentially Plaintiff’s retained third-party person observing the examination. However, after the COVID-19 pandemic began, many Plaintiff attorneys have been reluctant to have their clients appear for in-person examinations at the risk of exposure to COVID-19 despite the negative impact a virtual examination would have on the defense experts. So, what can defense counsel do to have an in-person IME compelled by the Court?

On December 23, 2021, Justice Julia Rodriguez of the Supreme Court, Bronx County in Medina v. 217 LLC[1] granted our office’s motion pursuant to Civil Practice Law and Rules § 3124[2] to compel Plaintiff to appear for an in-person vocational rehabilitation IME. In the Decision, Justice Rodriguez held, inter alia, the following:

Movant presents compelling reasons why the particular vocational rehabilitation examination cannot as easily be virtual: Plaintiff shall require a language interpreter, and must complete multiple-choice questions and math problems on paper as a Spanish-speaking person; said questions and problems cannot be provided prior to the actual examination to avoid tampering and outside influence.

Additionally, Justice Rodriguez noted in the Decision that the Plaintiff recently attended an in-person inspection of the area where the alleged accident occurred with a total of six (6) persons, and thus, the in-person IME would be held with less persons that were present for the inspection at Plaintiff’s counsel’s office with strict COVID-19 protocols being followed.

This Decision set forth the importance of defense attorneys to establish compelling reasons to seek an in-person IME during the COVID-19 pandemic, such as the examination cannot be held virtually due to language and examination procedure barriers. Another example of a compelling reason may be that a medical expert has to conduct an in-person IME to evaluate the Plaintiff’s physical condition and to determine the Plaintiff’s current physical limitations. Moreover, the Court will also look at the circumstances of the case to determine if the Plaintiff has acted inconsistent with the objection to the in-person examination, such as appearing for an in-person inspection. One thing the Court in Medina v. 217 LLC did not touch on was whether the Plaintiff was going to appear in-person for Plaintiff’s medical experts, but simply objected to the Defendant’s request for an in-person medical examination. This is another factor defense counsel should examine when seeking to compel an in-person IME. Claims professionals should use the favorable language in this Decision to have their defense counsel seek in-person IMEs in their cases to allow their experts to conduct a full and thorough IME to obtain the best possible report to aid in their defense.

[1] Medina v. 217 LLC, Sup. Ct., Bronx Cty., December 23, 2021, Rodriguez J., Index No.: 300254/2017E

[2] CPLR § 3124