In personal injury cases where a party’s mental or physical condition “is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician”. (CPLR §3121[a]) The party to be examined will receive a notice from the party seeking the examination providing the time, location and name of the designated physician as well as the conditions and scope of the examination. However, it cannot take place less than 20 days after the notice is served. A copy of the examining physician’s “detailed written report” containing his findings and conclusions will be furnished to the party who sought the examination who, in turn, is required to provide a copy to any other party upon request. (CPLR §3121[b])
In Del Ra v. Vaught, 2 AD2d 156, ( 3rd Dept., 1956), the trial court granted the defendant’s motion seeking a physical examination of the plaintiff conditioned on the requirement that a copy of the examining physician’s report be forwarded to the attorney for the plaintiff. The defendant appealed. In affirming that decision, the Appellate Division held that: “The general trend of the practice in personal injury cases is to attempt to narrow down the areas of medical dispute, and the aim is, ultimately, with the assistance of the medical profession, to eliminate most of the controversy on the medical side of personal injury cases”.
In some cases, a party may request an additional examination of the party previously examined by a different physician due to the unavailability of the initial examining physician to testify at trial. The Court in Rosado v. A & P Food Store, 26 Misc3d 935 (Sup Ct, Westchester Co., 2009), was confronted with just such an issue. In that cases the plaintiff was a customer in defendant’s store and was injured when she fell therein. After note of issue had been filed with the court, the physician who originally examined the plaintiff for the defense suddenly moved out of state due to family medical reasons and informed defendant that he would not be available to testify at any future scheduled trial. As a result, defendant sought an order to compel the plaintiff to submit to a further examination by a newly designated physician. The plaintiff opposed.
Noting that “[t]here is a relative paucity of cases dealing with the propriety of ordering a second examination due to the unavailability of the first examining physician at trial, the court followed the reasoning of the Appellate Division, Second Department, in Korolyk v. Blagman, 89 AD2d 578 ( 2nd Dept., 1982), which pointed out that “when a physician is selected to perform an examination for purposes of litigation, there is a clear understanding and expectation that the physician will be available to testify on behalf of the party whom the examination is conducted”.
The court stated that “[a]lthough there is no restriction in CPLR 3121(a) on the number of examinations to which a party may be subjected, once an examination is conducted, an additional examination shall be permitted only where the party seeking the examination demonstrates that it is necessary(citations omitted). Moreover, if a party is seeking an additional examination after the note of issue has been filed, as here, the party must demonstrate that ‘unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination’ (citation omitted)”.
Here, the court had no choice but to compel the plaintiff to undergo an additional examination by a different physician due to the first physician’s “abrupt” departure from the state; that defendant’s counsel had no reason to “perceive” at the time of the initial examination that the physician would not be available at trial; and that he did not have the authority to direct an out of state witness to appear and testify at trial.
What happens, however, when a plaintiff complains about certain injuries prior to the first physical examination and thereafter, serves upon the defendant supplemental verified bills of particulars alleging additional, different injuries? Should the court allow additional examinations by a different physician designated by the defendant? That issue was presented in Lewis v. John, 87 AD3d 564 (2nd Dept., 2011).
Lewis was injured in a motor vehicle accident in September 2008 and commenced a lawsuit. Initial and supplemental bills of particulars were served in October 2009 alleging injuries to her neck, back, left shoulder and left hand as a result of defendant’s negligence. On April 1, 2010, plaintiff was examined by Dr. Nason, an orthopedist, designated by the defendant. On April 10, 2010 plaintiff filed a note of issue and certificate of readiness for trial.
In October 2010, plaintiff served second and third supplemental verified bills of particulars alleging that “as a result of defendant’s negligence, the injured plaintiff sustained medial and lateral meniscal tears to her right knee, requiring a surgical repair”. The defendant served an additional request for another physical examination by a different physician, Dr. Robbins, also an orthopedist. The plaintiff objected, not because she refused to be subjected to an additional examination, but solely on the ground that she insisted it be performed by Dr. Nason, the original orthopedist.
Reversing the Supreme Court, which denied defendant’s motion to strike the second and third supplemental verified bills of particulars unless plaintiff was examined by Dr. Robbins and directed that she be examined by Dr. Nason as she requested, the Appellate Division, Second Department, citing CPLR 3121(a) determined that “[a]lthough a plaintiff may challenge a defendant’s choice of an examining physician, the challenge must be based upon a claim of bias against the plaintiff or his or her attorney by the designated examining physician (citation omitted) or prejudice against the plaintiff if that examining physician is allowed to testify at trial”. Since there was no prejudice or bias established by the plaintiff as against Dr. Robbin, the court found the Supreme Court’s order to direct plaintiff’s examination by Dr. Nason “aggrieved” the defendant and was an “improvident exercise of discretion”.
Distinguishing the holding in Lewis, id., the Supreme Court, Queens County, in Ocampo v. City of NY, (NYLJ, 10/2/12, Gavrin, J.) denied defendant’s request of an additional physical examination by a different physician.
The plaintiff, a city worker, injured his left knee when he stepped into a hole while walking along a platform on the Bronx Whitestone Bridge in June 2006. He underwent arthroscopic surgery in December 2006. Earlier that month he was examined by defendant’s designated physician, Dr. Sherry. Subsequently, in January 2011, plaintiff had another operation to the same knee. In February 2011, plaintiff served a supplemental verified bill of particulars, medical records, and an authorization for another examination by Dr. Sherry. Defendant moved for an order directing an examination by a different orthopedist, Dr. Strauss, which plaintiff objected to.
The court did not agree with the defendant’s reliance on Lewis, supra, because, unlike the plaintiff there, Ocampo was not alleging a different injury to another body part from that which he originally alleged, and was examined for by Dr. Sherry. Like the plaintiff Lewis, Ocampo had no objection to an additional examination as long as it was by the same doctor.
Holding that Dr. Strauss’ examination and trial testimony would be cumulative and only bolster that of Dr. Sherry, with no reasonable expectation that Dr. Sherry will not be available for trial (see, Korolyk, supra,), the court was not “convince[d]” that another “orthopedic medical examination by a different doctor [was] mandated”. However, the court allowed for another examination of the plaintiff by Dr. Sherry, if the defendant so elected.