IME Watchdog advertises themselves as follows: “an innovative company poised to arm plaintiff’s’ firms with a new defensive weapon against insurance companies and their IME hired guns. In the event that defendant files a motion to dismiss based on a ‘serious injury’threshold, the Watchdog Advocate who attended the examination will be available to prepare an affidavit and/or provide in-court testimony in support of your opposition. Watchdog affidavits and testimony can highlight which tests were not performed, possible mischaracterization of the results, and any other information that tends to show a triable issue of fact.”
IME Watchdog filed an application in Bronx County before Judge Tapia seeking an injunction v. Baker, McEvoy, Morrissey & Moskovits, P.C., counsel for American Transit Insurance Company, claiming the law firm interfered with their contractual rights with plaintiffs’ law firms by excluding IME Watchdog personnel from Independent Medical Examinations (IME).
There is well settled law that an attorney has the right to be present for the IME. “A party is ‘entitled to be examined in the presence of [his or] her attorney or other …… so long as [that person does] not interfere with the conduct of the examinations’ …, ‘unless [the] defendant makes a positive showing of necessity for the exclusion of’ such an individual” (A.W. v. County of Oneida, 34 A.D.3d 1236, 1237-1238, 827 N.Y.S.2d 790; Jessica H. ex rel. Arp v. Spagnolo, 41 A.D.3d 1261, 1262, 839 N.Y.S.2d 638, 639 (2007). “This is not to suggest that counsel may interfere with the conduct of the physical examination or that the examining room should be turned into a hearing room with lawyers and stenographers from both sides participating. The lawyer’s role at the physical examination should be limited to the protection of the legal interests of his client apart from the actual physical examination in which he has no role “Jakubowski v. Lengen, 86 A.D.2d 398, 401, 450 N.Y.S.2d 612, 614 (1982).
Judge Tapia found an injunction was valid noting, “a defendant’s blanket notice excluding non-lawyers across the board [WatchDogs in this instant matter] from being present during the PE is placing the proverbial “cart before the horse.” Here, defendants would have this Court believe that only through a blanket prophylactic exclusion of every plaintiff’s lawyer designated representative, can the integrity of the PE process be assured. The assumption underlying defendants’ reasoning is that PE observers [WatchDogs here] will always interfere with the exam. This may or may not be the case. In any event, allegations of PE interference are best decided on a case-by-case basis, with Defendants bearing the burden. Accordingly, IME Watchdog has shown likelihood of success on the merits regarding a rupture of its contracts with their clients.”
This dispute will surely land in the First Department. As the Appellate Division Fourth Department has ruled: “In order to perform his function the examining physician should be allowed to ask such questions as, in his opinion, are necessary to enable him as a physician to determine and report freely on the nature and extent of the injuries complained of. This may include inquiry into the peculiar manner in which the injuries were received (see Wood v. Hoffman Co., 121 App.Div. 636, 106 N.Y.S. 308). The presence of plaintiff’s attorney at such examination may well be as important as his presence at an oral deposition. A physician selected by defendant to examine plaintiff is not necessarily a disinterested, impartial medical expert, indifferent to the conflicting interests of the parties. The possible adversary status of the examining doctor for the defense is, under ordinary circumstances, a compelling reason to permit plaintiff’s counsel to be present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to seek damaging admissions.” Jakubowski v. Lengen, 86 A.D.2d 398, 400-01, 450 N.Y.S.2d 612, 614 (1982).
Read the decision here.