Wade Clark Mulcahy LLP

<p style="text-align: justify;">Recently, the Appellate Division dealt with three separate cases consolidated into one appeal on the issue of when a plaintiff’s attorney may have a third-party attend a plaintiff’s medical exam with a defense doctor, as well as whether it is permissible for a plaintiff’s attorney to audio and/or video record his client’s exam with a defense doctor.</p>
<p style="text-align: justify;"><em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/05/Difiore-et.-al.-v.-Pezic-et-al..pdf">Difiore et. al. v. Pezic, et al.</a> </em>dealt with three plaintiffs against their respective defendants.  The defendants scheduled neuropsychological and orthopedic evaluations of the three plaintiffs.  Counsel for those plaintiffs insisted upon the presence of a third-party practitioner at the medical exam, as well as insisting that the exams be audio and/or video recorded.</p>
<p style="text-align: justify;">The law on this subject dating back roughly 20 years is that the plaintiff may be entitled to “unobstructive” audio recording of a psychiatric exam if the plaintiff is claiming emotional distress.  In addition, case law allows a minor child to be accompanied by parents or other relatives during the child’s medical exam.  Normally, trial judges in this state generally prohibit any recordings or the presence of third-parties at routine orthopedic exams.</p>
<p style="text-align: justify;">In a departure from this precedent, the Appellate Division vaguely held, in a published decision, that any disagreement over whether to permit third-party observation of <strong><em>any </em></strong>defense medical exam (including orthopedic exams of fully grown adults), are to be evaluated by trial judges on a case-by-case basis.  Moreover, it is the plaintiff’s burden to show the court that third-party presence or recording, or both, is appropriate in a particular case.  Video recordings are also now allowed, and any video taken will be allowed to be shown at trial.  Third-party observers, however, are not allowed to interact with the plaintiff or otherwise interfere with the exam. However, the Court emphasized that the presence of a third party or recording the exam required “special conditions”.</p>
<p style="text-align: justify;">Perhaps the most egregious part of this decision is that it only applies to defense medical exams.  Plaintiff attorneys have been and remain allowed to schedule medical exams of their clients without any notice to the defense, thus providing the defense no chance to audio record, video record or have a third-party attend the plaintiff’s exam scheduled by his attorneys.  Moreover, the court expressly held that if the plaintiff’s expert is his treating physician, then there is a blanket prohibition on any of the above.  Rules for me, but not for thee.</p>
<p style="text-align: justify;">We expect many contentious motions and appeals on this issue in the future.</p>
<p style="text-align: justify;">Thanks to Mike Noblett for his contribution to this article.  Should you have any questions, please contact <a href="mailto:mcare@wcmlaw.com">Matthew Care</a>.</p>