• The Elephant in the Examining Room - Third Party Presence at an Independent Medical Examination
  • December 21, 2009 | Author: Paul C. Johnson
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Cherry Hill Office
  • Erudite and imposing torts professors (mine wore a Phi Beta Kappa pocket watch key every class) teach all first year law students that negligence consists of four elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant's breach of that duty was the proximate cause of (4) the plaintiff's alleged damages. In every tort action the plaintiff must demonstrate the existence and the extent of the alleged physical or mental injuries.

    New Jersey Court Rule 4:19 allows defense counsel to require a plaintiff to "submit to a physical or mental examination by a medical or other expert" when the physical or mental health of a plaintiff has been placed in issue. The physical or mental health of a plaintiff is placed in issue in virtually every personal injury lawsuit seeking to recover money damages. Independent Medical Examinations are the electron microscopes in the laboratories of most personal injury defense attorneys, designed to closely examine the medical claims of the plaintiff and his treating physicians.

    New Jersey Court Rule 4:19 specifically provides that a defendant:

    May require the party whose physical or mental condition is in controversy to submit to a physical or mental examination by medical or other expert by serving upon that party a notice stating with specificity when, where and by whom the examination will be conducted and advising, to the extent practicable, as to the nature of the examination and any proposed tests.

    Rule 4:19 does not impose any conditions on how these examination are conducted by the medical experts. Rule 4:19 does not envision that the plaintiffs will be accompanied to these examinations by any third parties or that the plaintiffs will be permitted to record these examinations in any manner.

    Many plaintiffs' attorneys seek to accompany their clients to these examinations or, in the alternative, seek to record the medical examination.

    Physical Status Examinations

    The controlling case for third party attendance at an orthopedic examination in New Jersey arose out of the Law Division in 1997. In Briglia v. Exxon, 310 N.J.Super. 498 (Law Div. 1997), Judge Wells initially recognized that "permitting attendance at IMEs would constitute a change in the present practice [in which] ... the unaccompanied or unrecorded exam is the norm." Judge Wells recognized that permitting a third party to accompany the plaintiff to an IME "turns the IME into an adversarial proceeding" and observed that the federal courts "have consistently held that the plaintiff's attorney may not be present during these exams." Id. at 501-502 (citing Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D. 68 (E.D. Pa. 1996); Brandenburg v. El Al Israel Airlines, 79 F.R.D. 543 (S.D.N.Y. 1978).

    Based upon his review of federal and state laws in other jurisdictions, including New York, California, Wisconsin and Oregon, Judge Wells "placed the burden on the plaintiff wishing to have an attorney attend or wishing to record the IME" to show demonstrable reasons for this deviation in the normal IME procedure. Some of those demonstrable reasons might include particular patients having problems communicating with doctors or understanding the doctor's questions, or a patient who may have had a past history with the physician that might warrant suspicion.

    Although the Law Division ultimately permitted third party attendance at the IME, the key consideration in the court's analysis is that the plaintiff has the burden of showing good cause for deviating from the standard procedure for physical status IMEs.

    Psychological Examinations

    The Appellate Division has determined that a plaintiff may "unobtrusively record" a psychological IME. B.D. v. Carley, 307 N.J.Super. 259 (App. Div. 1998). The Appellate Division recognized that the presence of plaintiff's counsel at the psychological IME with the plaintiff would be "distracting," and its holding did not open up the examination room to plaintiff's attorneys.

    However, the Appellate Division did open the doors of the examination room to permit the plaintiff to record this examination. The Appellate Division believed that the plaintiff's "right to preserve evidence of the nature of the examination, the accuracy of the examiner's notes or recollections, the tones of voice and the like outweigh the examiner's preference that there be no recording device."

    Neuropsychological Examinations

    New Jersey courts have not specifically addressed third party presence at neuropsychological examinations seeking to evaluate alleged cognitive complaints. There are compelling reasons against any deviation in the standard testing procedures for administering neuropsychological assessments. The American Academy of Clinical Neuropsychology issued a "Policy Statement on the Presence of Third Party Observers in Neuropsychological Assessments" in 2001 which strongly opposed any deviations from one-on-one administration of neuropsychological testing. Specifically, the American Academy of Clinical Neuropsychology stated:

    It is not permissible for involved third parties to be physically or electronically present during the course of an evaluation assessment of a plaintiff patient ...

    The Academy announced this policy fundamentally to preserve the "validity of the results obtained from a clinical neuropsychological assessment." The Academy stated:

    As a general principle, it is important that the clinical neuropsychologist not deviate from their ordinary clinical practices when called upon to do the same in the execution of an evaluation or in their treatment of a plaintiff patient. The greatest degree of validity is understood to be obtained when the patient is motivated to cooperate with the examiner by performing in an optimal fashion in compliance with instructions, and in a candid or unbiased fashion, and that this occurs in the context of a controlled environmental simulating or comporting with psychological laboratory conditions.

    The presence of an involved third party observer potentially introduces a distortion of the patient's motivation, behavioral self selection and rapport with the examiner(s). For example, the patient's rapport may be more attached to, and their behavior at least somewhat directed toward, the involved third party. This introduces threats to the validity of the neuropsychological evaluation in ways potentially unknown to, and perhaps not perceptible by, the examiner.

    The Policy Statement also observed that:

    A stealthy presence via such mechanisms as a one-way mirror, audio monitoring, video monitoring or audio/visual monitoring, does not constitute a tolerable exception to the above-stated policy.

    Finally, the Academy recognized that the neuropsychological tests used in these assessments were not standardized in the presence of involved third party observers which affects interpretation of the test results. The Academy noted:

    Psychological and neuropsychological tests have not been standardized in the presence of involved third party observers, and thus, it is inappropriate to compare the examinee's results to the normative results from the standardization sample. A departure from standardized testing procedures may diminish the utility of the normative data. Thus, any factor that compromises the standard administration of a neuropsychological test may jeopardize the validity and reliability of the test's findings.

    Moreover, neuropsychologists have an ethical responsibility to maintain test security, which may be undermined by the presence of third party observers who may "take notes and record specific test questions and answers to be used in preparing or coaching future litigants with neuropsychological claims."

    Conclusion

    New Jersey court rule 4:19 does not specifically permit third party presence or recording of any physical or mental status examination. However, if a plaintiff can demonstrate good cause for third party presence or recording of a physical status IME, a court may permit these options pursuant to Briglia v. Exxon. New Jersey courts have also permitted plaintiffs to "unobtrusively record" psychological status examinations pursuant to B.D. v. Carley. However, New Jersey has not specifically addressed third party presence at neuropsychological status examinations, and there are many compelling reasons for prohibiting third party presence at these examinations, including the negative effects upon the validity of the cognitive testing performance of the plaintiff. The Policy Statement issued by the American Academy of Clinical Neuropsychology provides persuasive arguments to keep the neuropsychological examination room door closed to plaintiff's counsel and their recording devices.