In Rebollo v. Nicholas Cab Corp. (App. Div. 1st Dept. Feb. 5, 2015), the Appellate Division, First Department reversed the lower court’s order granting defendants’ motion to “appear for a further independent medical examination (IME) by a physician designated by defendants.”
In holding that a further medical exam was not warranted, the court reasoned:
Plaintiff was not required to appear for an additional IME. Although there is no restriction in CPLR 3121 limiting the number of examinations to which a plaintiff may be subjected, a defendant seeking a further examination must demonstrate the necessity for it. Moreover, after a note of issue has been filed, as here, “a defendant must demonstrate that unusual and unanticipated circumstances developed subsequent to the filing of the note of issue to justify an additional examination.”
Here, the fact that defendants’ examining physician was placed on a three-year suspension subsequent to his examination of plaintiff and the filing of the note of issue does not justify an additional examination by another physician. Defendants have failed to demonstrate the existence of “unusual and unanticipated circumstances,” since the bill of particulars was served before the IME, and there were no allegations of new or additional injuries.
It should be noted that although the court used the popular term “independent medical examination” or “IME”, these exams are anything but “independent”. For example, the doctors conducting these procedures are hired by defendants and/or insurance companies for the purpose of denying or disputing the extent of a plaintiff’s injuries. As such, the better and more appropriate term is “DME” for “defense medical examination” (or “insurance medical examination”).