Limitations on Defense Medical Examinations of Injured Plaintiffs in Medical Malpractice and Personal Injury Claims

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Limitations on Defense Medical Examinations of Injured Plaintiffs in Medical Malpractice and Personal Injury Claims
by
Kevin F. Dugan and Holly B. Haines

I. Introduction
Physical and mental examinations are accepted discovery tools in personal injury and medical malpractice cases when a plaintiff is claiming damages for physical or psychologic injuries caused by a defendant’s negligence.[1] In fact, standing Superior Court Pretrial Orders provide that in such cases “the defendant shall have the right to a medical examination of the plaintiff prior to, or during, trial.”[2] While the defendant may have a right and a legitimate purpose for performing a physical or mental examination of a plaintiff, the defendant does not have the right to dictate the terms of such examinations to the detriment of the plaintiff.

Physical medical examinations are personal, intrusive and embarrassing to an injured plaintiff. Mental examinations are potentially even more harmful and intrusive to an injured plaintiff due to the nature of the subject matter being inquired into. When these examinations are performed in the course of litigation by a defense expert, there is no physician patient privilege so the purpose of the privilege, encouraging full disclosure by the injured patient is inhibited. The results of these examinations may also be made public during trial, which can further inhibit the plaintiff from full disclosure.
Although in theory a medical examination of an injured plaintiff is supposed to be objective and scientific, experience shows that such examinations are adversarial when performed in the course of litigation by a physician hired by the other side to be called as a witness against the injured plaintiff. These examinations are being performed for litigation, not for patient treatment, so appropriate limits must be placed on the method, manner and number of examinations that are allowed. The plaintiff should also be entitled to the assistance and protection of counsel during these examinations to prevent an unsupervised interrogation by an agent of the defense.

II. Limitations on Examinations and Available Protections for the Plaintiff
While a plaintiff cannot generally refuse to submit to a physical or mental examination if he or she has placed his or her physical or mental condition at issue in a case, a plaintiff can request protection from the court or limitations on the examination when the requested examination is unduly burdensome, dangerous, expensive, harassing, intrusive or oppressive. In such cases, under Superior Court Rule 35(c) a plaintiff can request a protective order: (1) that the examination not be had; (2) that the examination be had only on specified terms and conditions; (3) that the examination be had only by methods other than those selected by the party requesting the examination; (4) that certain matters not be inquired into during the examination or that the scope of the examination be limited to certain matters; and (5) that the examination be conducted only in the presence of persons designated by the court.[3] A plaintiff can generally refuse to submit to multiple, successive examinations absent unusual circumstances.[4] The purpose for limiting an examination of a plaintiff is to protect the plaintiff from physical and mental harm, from unnecessary intrusion and embarrassment, and from improper interrogation tactics by the defense.
The costs of defense physical and mental examinations of the plaintiff should be borne by the defendant as the requesting party. If the examining physician is an expert witness who will testify at trial, a report of the examination should be provided to the plaintiff. Other limits on physical and mental examinations may include the location of the examination, the duration of the examination, the scope of the examination, the nature of the examination, the credentials of the examiner, the right to counsel or witnesses at the examination, and the number of examinations the plaintiff can be subjected to.

A. Location and Duration of Examination
The general rule is that if there are competent, qualified physicians within the proximity of the plaintiff or in the jurisdiction where the suit is filed, the examination should occur in that jurisdiction. A defense attorney cannot require an injured plaintiff to travel out of state for an examination if there are competent and qualified physicians in the jurisdiction.[5] If there are no qualified physicians in the specialty chosen within the jurisdiction, then the defense should select a physician from a forum chosen by the plaintiff. If a plaintiff is too disabled to travel to an outside jurisdiction and harm could result from being required to travel to a defense medical examination, a plaintiff cannot be compelled to do so because his or her physical safety cannot be compromised for the purposes of discovery in litigation.[6] Likewise, the duration of the examination must be reasonable and cannot be unnecessarily prolonged to test the endurance or stamina of an injured plaintiff.

B. Scope and Nature of Examination and qualifications of examiner
The scope of the examination must be limited to the areas at issue in the case. Specifically, it must be limited to the areas of damages claimed by the plaintiff and the issues the plaintiff raised in the case. A defendant must be able to show the relevance of any requested examination, the need for any information that the examination may yield, and the importance and safety of the procedure if diagnostic testing is requested.
The general rule is that invasive and painful procedures will be disallowed during a defense medical examination absent a compelling need.[7] Likewise, tests requiring administration of drugs, anesthetics, and radiation exposure are generally not allowed absent clear and convincing evidence of a compelling need for the procedure.[8] Finally, scientifically unreliable or experimental testing will not be allowed. The purpose of a medical examination is to obtain medical information not otherwise ascertainable by the medical records or testing that has already been performed by a treating physician. If invasive testing has been performed and can be reviewed by a defense medical expert, courts will not subject plaintiffs to the same testing at the defendant’s request absent a compelling need. The bottom line is that the scope of any examination or testing must be reasonable and its limits must be agreed upon before the testing occurs. Plaintiffs should also request that any medical examination be recorded by video, audio and a stenographer to keep a complete record of what occurs during the examination, ensuring that inappropriate areas are not inquired into.
Finally, the examining physician must be qualified and disclosed to plaintiff’s counsel before an examination is performed. This disclosure should not only report the name and location of the physician, but also his or her areas of expertise and qualifications for performing any requested examination.

C. The Right to Counsel or a Witness at Defense Medical Examinations
Superior Court Rule 35 is silent on the presence of counsel or witnesses at medical examinations of injured plaintiffs. While the rule allows the defendant to request a physical or mental examination of a plaintiff when the plaintiff puts his or her physical or mental condition at issue, it does not allow the defendant to have unfettered access to the plaintiff during such an examination. Nor does it preclude the plaintiff from having counsel or a witness present at such examination.
The New Hampshire Supreme Court has never decided whether a plaintiff may have a witness or counsel present when submitting to a physical or mental examination under Superior Court Rule 35, but at least two Superior Courts have allowed the presence of counsel or a witness because it is not precluded by New Hampshire rules.[9] The New Hampshire Legislature has always found that injured employees were entitled to have the presence of their own physician at independent medical examinations under the workers’ compensation law.[10] The legislature recently amended this statute to also allow the presence of a witness during an independent medical examination to take notes or observe on behalf of an injured employee, stating that “[a]n injured employee shall have the right to a witness present during such examination.”[11]
While some federal courts do not allow the presence of an attorney or witness at an examination, many others do.[12] In those federal cases that allow the presence of counsel, the courts have observed that:

[I]n the context of an adversary proceeding, the plaintiffs’ interest in protecting themselves from unsupervised interrogation by an agent of their opponents outweighs the defendants’ interest in making the most effective use of their expert. The defendants’ expert is being engaged to advance the interests of the defendants; clearly, the doctor cannot be considered a neutral in the case.[13]

At least one federal court has observed:

There is a legitimate purpose to be served by the presence of the attorney. The attorney can observe and take notes of the procedures followed in order to have that information available for cross-examination . . . the presence of the attorney is more likely to produce a higher quality of justice and fairness in the ensuing trial and permit more cogent cross-examination of the expert.[14]

Many state courts routinely allow the presence of a plaintiff’s attorney or third party witness at a defense physical or mental evaluation by statute or common law.[15] In so doing, these states “reason that the physician should be prevented from making inquiries beyond the legitimate scope of the exam, thus transforming the exam into some sort of deposition.”[16] “Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff there is a possibility that improper questions may be asked and a lay person should not be expected to evaluate the propriety of every question at his peril.”[17] In addition to the adversarial nature of an examination by a paid defense expert, an unsophisticated plaintiff is “placed in the awkward position of being physically examined by someone not of his or her choosing, who has no interest in the plaintiff’s well-being and not for medical treatment.”[18]
The key point to recognize is that it is the plaintiff’s privacy interest that is involved in the determination of whether to allow counsel at an examination, not the physician’s. If a plaintiff wants to be certain that a compelled intrusion into his or her privacy by a medical or psychiatric examination be preserved, he or she should be so entitled.[19] “The presence of plaintiff’s attorney at such examination may be as important as his presence at an oral deposition.”[20] In sum, the defense psychiatrist or physician does not have the right to dictate the terms under which a discovery medical examination shall be held where a plaintiff is not being evaluated for treatment.[21]
Unless the defense can provide good cause or reason that the plaintiff should not have his attorney present at the requested physical and mental examinations, the presence of the attorney should be allowed. There is no statute or court rule prohibiting the presence of an attorney or third party witness at a physical or mental examination. Nor is there any New Hampshire law precluding the plaintiff from having his attorney or representative at a discovery medical examination being conducted by a paid expert for the defense. In fact, the most recent law on the issue is the amendment to the workers’ compensation statute allowing a plaintiff to have a witness present for compulsory “independent medical examinations.”
Many defense experts in New Hampshire personal injury and medical malpractice cases are professional witnesses with admitted biases of making findings favorable to the party retaining them. In contrast, most New Hampshire plaintiffs are unsophisticated and untrained in medical issues, they may have limited education, and they have suffered catastrophic or disabling injuries. These plaintiffs cannot be expected to know whether questions are inappropriate. Nor can their rights be protected in these clearly adversarial physical and mental examinations without the presence of counsel. There is nothing independent about defense medical examinations performed in the course of litigation. As such, the plaintiffs’ individual rights should always outweigh those of these clearly experienced paid experts at these examinations.

D. The number of examinations – Repetitive and Successive Medical Examinations are not Allowed
Pursuant to Superior Court Rule 63(D), the defendant is entitled “to a medical examination of the plaintiff prior to, or during, trial.” The defendant is not entitled to multiple medical and psychiatric examinations.
While Superior Court Rule 63 does not expressly limit the number of examinations a defendant may require the plaintiff to undergo, it also does not allow repetitive or successive examinations to be performed. The general rule is that “repetitive and harassing examinations are to be discouraged. An application for a second or further examination may be properly refused in the absence of a showing of a necessity therefor.”[22] There is never a necessity for successive medical examinations when the defense has already performed at least one medical examination of the plaintiff and there is no assertion that the examination was inadequate, incomplete, or failed to inform the defendant of the plaintiff’s medical condition.
Despite the logic of this rule, in meritorious cases a defense medical examination will often result in a report favorable to the plaintiff and the defendant will seek a second or third medical examination couched in the need for an examination by a physician in a different specialty in an effort to receive a report more favorable to its position. “A defendant is not entitled to have examinations made in order to search for a report which may be more favorable to such defendant.”[23] Nor is the defendant entitled to successive examinations just to have an exam performed by a physician in the same specialty as each physician who has examined the plaintiff.[24] “There must be some limit to the number of times a defendant in a suit for personal injuries may compel the plaintiff to submit his or her body to the scrutiny of physician employed for the purpose of becoming witnesses for the defendant.”[25]

III. Conclusion
While medical examinations are allowed and are appropriate discovery tools in medical malpractice and personal injury litigation, the right to obtain such examinations is not unlimited and the defendant does not have the right to dictate the terms of an examination, nor how it will be performed. Discovery examinations are adversarial in nature and are taken for the purpose of litigation, not treatment, so appropriate limits must be placed on such examinations as outlined in this article. Plaintiffs must be protected from being compelled to submit their body and mind to the unfettered and unlimited scrutiny of physicians hired for the sole purpose of becoming witnesses for the defense. If your client is truly injured, when appropriate limits on examinations are imposed and appropriate protections for the plaintiff are in place, defense medical examinations can result in favorable reports that will only increase the value of your case and increase the chance of a favorable resolution for your client.

ENDNOTES

[1]. See N.H. Super. Ct. R. 35(a).
[2]. See N.H. Super. Ct. R. 63(D).
[3]. See Super. Ct. R. 35(c).
[4]. See 4 R.Wiebusch, N.H. Practice, Civil Practice and Procedure, §24.02 at 573 (1997).
[5]. See, e.g., Steel v. True Temper Corp., 174 N.E.2d 298, 301(Ohio 1961); see also Blount v. Wake Elec. Membership Corp., 162 F.R.D. 102, 107 (E.D. N.C. 1993).
[6]. See Steel, 174 N.E.2d at 301.
[7]. See, e.g., Stinchcomb v. United States, 132 F.R.D. 29 (E.D. Pa. 1990) (disallowing spinal tap and MRI under heavy sedation absent clear and convincing evidence of compelling need); but, c.f., Kleen v. Yellow Cab Co., 7 F.R.D. 169 (D. Ohio 1945) (finding compelling need to understand extent of plaintiff’s claimed injury and allowing defense to perform cystoscopy despite painfulness and invasiveness of procedure to plaintiff)
[8]. See 23 Am.Jur.2d Depositions and Discovery §§299-300 (1983).
[9].See Witham v. The Napoli Group, LLC, Rockingham Co. Super. Ct. No. 08-C-102 (Nadeau, J.) andHill v. Despres, Merrimack Co. Super. Ct. No. 97-C-135 (Abramson, J.).
[10].See RSA 281-A:38, I.
[11]. See RSA 281-A:38, II (effective January 1, 2011).
[12]. See, e.g., Acosta v. Tenneco Oil Co., 913 F.2d 205, 210-211 (5th Cir. 1990) (allowing presence of counsel at vocational rehabilitation examination); Vreeland v. Ethan Allen, Inc., 151 F.R.D. 551, 551-552 (S.D.N.Y. 1993) (attorney presence at defense expert psychological examination of plaintiff allowed); Gensbauer v. May Department Store, 184 F.R.D. 552, 553 (E.D.P.A. 1999) (representation by counsel allowed at IME of plaintiff by defense expert);Zabkowicz v. West Bend Co., 585 F.Supp.635, 636 (E.D. Wis. 1984) (denying defendant’s motion for psychiatric examination of plaintiff without the presence of third party).
[13]. Zabkowicz, 585 F.Supp. at 636; see also Acosta v. Tenneco Oil Co., 913 F.2d at 210.
[14]. Vreeland v. Ethan Allen, Inc., 151 F.R.D. at 551.
[15]. See, e.g., Langfeldt-Haaland v. Saupe Enterprises, Inc., 768 P.2d 1144, 1146-1147 (Alaska 1989)(listing cases); Sharff v. Superior Court, 282 P.2d 896, 897 (Cal. 1955);Prince v. Mallari, 36 So.3d 128, 131-132 (Fla. Dist. Ct. App. 2010); U.S. Security Insurance Company v. Cimino, 754 So.2d 697, 700-701 (Fla. 2000); B.D. v. Carley, 704 A.2d 979, 980-81 (N.J. Super. 1998); Ramsey v. New York University Hospital Center, 789 N.Y.S.2d 104, 105 (N.Y. App. Div. 2005); Ponce v. Health Insurance Plan of Greater New York, 475 N.Y.S.2d 102, 104 (N.Y. App. Div. 1984); Jakubowski v. Lengen, 450 N.Y.S.2d 612, 614 (N.Y. App. Div. 1982); Grange v. Sweet, 779 N.Y.S.2d 775, 777-778 (N.Y. Sup. 2004); McCullogh v. Mathews, 918 P.2d 25, 25 (Okla. 1995); Tietjen v. Dept. of Labor & Indus., 534 P.2d 151, 154 (Wash. 1975).
[16]. Langfeldt-Haaland, 768 P.2d at 1145.
[17]. Sharff, 282 P.2d at 897.
[18]. Prince, 36 So.3d at 131-132.
[19]. See U.S. Security Insurance Company, 754 So.2d at 702.
[20]. B.D. v. Carley, 704 A.2d. at 980.
[21]. See id. at 981.
[22]. Successive Examinations, 25A C.J.S. Damages §332 (2011); see also Tucker v. Bay Shore Storage Warehouse, 893 N.Y.S.2d 138, 139 (N.Y. App. Div. 2010); Korolyk v. Blagman, 452 N.Y.S.2d 445, 446-447 (N.Y. App. Div. 1982).
[23]. Granger v. Montgomery Ward & Co., 408 So.2d 320, 325 (La. Ct. App. 1982).
[24]. See Hildyard v. Western Fasteners, 522 P.2d 596, 599 (Colo. Ct. App. 1974).

Holly Haines
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