Week of October 1-7

Yesterday, in Santana v. Johnson, 2017 NY Slip Op 06997 (1^st Dept. 2017), the Appellate Division, First Department addressed whether a plaintiff in a personal injury action is permitted to have a personal representative at an IME examination.

The Court held that “[p]laintiffs are entitled to have a representative present at their physical examinations as long as the representative does not interfere with the examinations conducted by defendants’ designated physician or prevent defendants’ physician from conducting a meaningful examination.” In Santana, there was no contention that the representative interfered with the examination, and the IME doctor did not note in his IME report that the representative interfered or prevented the doctor from performing a meaningful examination.

Santana highlights the importance of not only informing your IME doctor that plaintiff might bring a representative from an agency such as “IME Watchdog” to the IME examination, but also that the IME doctor should be aware that he needs to document in his IME report whether plaintiff’s representative interfered with the IME examination. Without such documentation, the Court cannot award another IME examination if the representative did indeed interfere to such a “meaningful” extent that the Court feels another IME is warranted.