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Summer 2014, Vol. 25 No. 2 How to Correctly Approach Independent Medical Exams By Heidi Oertle and Shawna Boothe вЂ“ July 24, 2014 The independent medical examination (IME) is a staple of products liability cases. Yet many little-known nuances of these exams can pose pitfalls in arranging, or responding to, requests for such examinations. This article identifies some of those challenges and provides strategies for addressing them. Legal Standard The first issue to consider is the legal standard applicable to a request for an IME. Most states have a statute or court rule setting forth what a defendant must show to obtain an IME, but the defendantвЂ™s burden of proof varies in three primary ways. In Alabama, Arizona, Florida, Massachusetts, Michigan, Missouri, Ohio, Pennsylvania, and Texas, the defendant must always show good cause to obtain an order requiring the plaintiff to appear for an IME. California, Connecticut, and Oklahoma require good cause only in nonвЂ“personal injury suits, and provide for an IME as a matter of right in products liability cases where the plaintiff has placed his or her physical status at issue. Illinois, New Jersey, and New York simply provide for an IME as a matter of right where the physical or mental condition of a party is in controversy. Logistical Issues Even after you have an order in hand to conduct an IME, logistical issues can threaten to derail the process. Practitioners should consider the following challenges in advance of arranging for an IME: How do you request an IME? In most states, including Illinois, Missouri, and Texas, the requesting party must first file a motion in all types of cases. Generally, good cause must be shownвЂ”a burden that is usually not difficult to meet where the plaintiff has placed his or her physical status at issue. In Arizona, California, Florida, Michigan, New Jersey, and New York, the requesting party in personal injury or products liability suits simply gives notice to the other side. However, if the partyвЂ™s physical or mental state is not directly at issue, the defendant must still likely file a motion. Who selects the examiner? The choice of the examiner generally rests with the requesting party, including in California and New York. In Illinois, Missouri, and Washington, however, the court approves the examiner upon suggestion from the defendant. May nonphysicians perform exams? In most states, only a licensed medical doctor may perform an IME of a party. See, e.g., Mass. Bay Ins. Co. v. Stamm, 654 N.Y.S.2d 752 (App. Div. 1997) (rejecting request for examinations by a nurse, psychologist, and life-care planner because they _________________________________________________________________________________________________________ В© 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Products Liability Summer 2014, Vol. 25 No. 2 _________________________________________________________________________________________________________ were not physicians). Some states allow experts such as vocational rehabilitation specialists to conduct exams. See, e.g., La. Code Civ. Proc. Ann. art. 1464; Kavanagh v. Ogden Allied Maint. Corp., 705 N.E.2d 1197 (N.Y. 1998). May the plaintiffвЂ™s attorney be present? Most states, including Arizona, California, Illinois, New York, Oklahoma, Pennsylvania, and Washington, allow a plaintiffвЂ™s attorney to attend the IME as a matter of right, but the attorney may not interfere with the examination. In Michigan and Ohio, the court has discretion as to whether the attorney may attend. This is an issue you should brief and argue along with the motion requesting an exam, or the plaintiffвЂ™s response. Missouri has traditionally been hostile to attendance by plaintiffвЂ™s counsel. See, e.g., Jensen v. Wallace, 671 S.W.2d 331, 333 (Mo. Ct. App. 1984) (rejecting plaintiffвЂ™s claim that he was constitutionally entitled to the assistance of counsel at an IME, holding that вЂњit is [not] a stage of the litigation which presumptively requires the presence of a partyвЂ™s attorneyвЂќ). In Florida, a defendant may block the plaintiffвЂ™s attorney from attending by showing good cause. Likewise, federal courts have generally precluded plaintiffвЂ™s attorneys from being present at IMEs. See, e.g., Romano v. II Morrow, Inc., 173 F.R.D. 271, 274 (D. Or. 1997); Shirsat v. Mut. Pharm. Co., 169 F.R.D. 68 (E.D. Pa. 1996); Tomlin v. Holecek, 150 F.R.D. 628, 633вЂ“34 (D. Minn. 1993). In other states, if the examinee makes a showing of good cause, his or her attorney may be present for the exam. See, e.g., Kutner v. Urban, 17 Mass. L. Rptr. 49 (Super. Ct. 2003) (granting defendantвЂ™s motion for protective order to preclude plaintiffвЂ™s attorney from attending exam, based on failure to show good cause); Briglia v. Exxon Co., 310 N.J. Super. 498 (1997) (granting motion for unaccompanied and unrecorded IME). Even if an attorney may attend, plaintiffs should not count on being able to present testimony at trial regarding their attorneysвЂ™ version of what occurred at an IME. In an Ohio case, a plaintiffвЂ™s attorney was permitted to attend her IME but later withdrew from the case in order to be available to testify as a rebuttal witness to the defense expert. Thomas v. Vesper, 2003 WL 1857137 (Ohio Ct. App. April 8, 2003). The court held that while the claimant had a right to have her attorney present at her IME, the attorney did not have a right to testify about what occurred. Can the plaintiffвЂ™s representative record an exam? Arizona, California, Washington, and many federal courts permit an examineeвЂ™s representative to record the exam. See Cal. Civ. Proc. Code В§ 2032.510; Ariz. R. Civ. P. 35(a); Sidari v. Orleans Cnty., 174 F.R.D. 275, 291 (W.D.N.Y. 1996) (audio recorder); Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12, 14 (E.D.N.Y. 1989) (stenographer); Zabkowicz v. W. Bend Co., 585 F. Supp. 635, 636 (E.D. Wis. 1984) (video camera). In Missouri, however, courts have rejected attempts by plaintiffsвЂ™ attorneys to record IMEs as inconsistent with the aim of a medical exam. See Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534 (Mo. Ct. App. 2008). Licensure Issues For plaintiffs and defendants alike, the question of licensure for experts examining the claimant can influence overall strategy, including the key question of which expert performs the exam. For example, a plaintiffвЂ™s counsel who selects an out-of-state expert to examine his or her client _________________________________________________________________________________________________________ В© 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Products Liability Summer 2014, Vol. 25 No. 2 _________________________________________________________________________________________________________ may have difficulties challenging a defendant who wants to do the same. This area offers perhaps the biggest potential for adverse consequences, both for the attorney arranging for the IME and the physician performing the IMEвЂ”nonlicensed physicians risk being found to have conducted the unlicensed practice of medicine, and attorneys who fail to consider licensing may be precluded from relying on the results of the exam at trial. It should come as no surprise that nearly every state prohibits the practice of medicine by unlicensed individuals. Whether state medical boards consider conducting an IME solely for the purposes of litigation to constitute вЂњpracticing medicineвЂќ as set forth in the statute is not always clear. Many states, including Idaho, New Jersey, Ohio, and Virginia, expressly forbid conducting an IME in a state where the physician is not licensed. A small number of states simply require the examiner to be licensed in some state, and not necessarily where the exam is conducted. In Missouri, for example, the statute defining the authorized practice of medicine specifically allows physicians working solely on litigation to conduct IMEs without a Missouri medical license. See Mo. Rev. Stat. В§ 334.010(3). The Alabama State Board of Medical Examiners has found that physicians who spend less than 10 days a year in the state conducting IMEs do not fall within the statutory definition of practicing medicine. Ala. Admin. Code R. 540-X-16-.02. A physician must still be licensed in some state to conduct an IME in Alabama, however. For those reasons, attorneys should check on the applicable statute before planning for an IME. The licensing regime in your state can have significant implications on the choice of an expert, or in how far in advance parties begin the planning process. There are several strategies you can use to make sure you have complied with state licensure requirements: п‚· п‚· п‚· Arrange by agreement to fly the claimant to the state in which the examiner is licensed. This may be more feasible, or more difficult for the plaintiff to resist, if he or she has already flown to visit his or her own litigation expert. Obtain a temporary license just for purposes of the examination. Such licenses are sometimes called вЂњlicensure by endorsement.вЂќ In attempting to obtain a license for the purposes of a lawsuit, practitioners should plan well in advance and check on the timelines associated with such applicationsвЂ”in many states, the licensing boards meet only a few times a year. Obtain an extraterritorial license in states, such as Pennsylvania, that grant licenses for physicians who practice in bordering states and whose practice extends into the state, or Ohio, which has a similar contiguous border exception. Other Potential Pitfalls Does the examining physician have a physician-patient relationship with the plaintiff? In federal courts and most states, no physician-patient relationship exists between a doctor performing an IME and the plaintiff. In Michigan and New Jersey, an IME physician has a limited physicianpatient relationship with the examinee. In Basil v. Wolf, 935 A.2d 1154, 1181 (N.J. 2007), the _________________________________________________________________________________________________________ В© 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Products Liability Summer 2014, Vol. 25 No. 2 _________________________________________________________________________________________________________ New Jersey Supreme Court cautioned that вЂњa physician owes the same duty of care to a person who is being examined and diagnosed for specific complaints during an independent medical examination as would be owed to a вЂ�traditionalвЂ™ patient presenting those complaints.вЂќ Attorneys and their experts working on IMEs in such jurisdictions should be aware of potential liabilities for conducting an IME in those states. What are the obligations of the requesting party after the exam? Parties who request IMEs often are required to disclose the results shortly after the exam. In Illinois, for example, a report by the examiner must be disclosed to the opponent within 21 days of the exam, or the examiner will be precluded from testifying about the exam findings. Ill. Sup. Ct. R. 215. Other states, as well as the federal rules, also require disclosure of a detailed report setting forth the findings based on the IME upon request by the plaintiff. See Fed. R. Civ. P. 35. Some states also preclude an examiner who conducts an IME from being characterized as a consulting expert. Should the plaintiff offer an IME before scheduling surgery or other medical treatment? A recent decision in New York raised the issue of a spoliation claim based on the plaintiffвЂ™s undergoing corrective surgery before the defendant could schedule an IME. The court concluded that the plaintiffвЂ™s surgery, which occurred after the defendantвЂ™s request for an IME and was to address a non-life-threatening condition, was undertaken purposely to spoliate evidence regarding her claimed condition. Mangione v. Jacobs, 950 N.Y.S.2d 457, 469 (Sup. Ct. 2012). The court dismissed the case as a sanction. Conclusion An IME can be a key component of prosecuting or defending a personal injury or products liability case. Practitioners on both sides of the litigation should be sure to heed the potential pitfalls in arranging IMEs, or in responding to such a request from an adversary. Keywords: litigation, products liability, independent medical examination, physical or mental condition, good cause, medical licensure, physician-patient relationship Heidi Oertle and Shawna Boothe are with Schiff Hardin LLP in Chicago, Illinois. _________________________________________________________________________________________________________ В© 2014 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.