Court: Attorney May Take Notes at Defense Medical Exam

In Nieto v. CLDN NY LLC, No. 159273/2016, 2019 WL 4962568 (N.Y. Sup Ct, New York County Oct. 08, 2019), a personal injury case, the court addressed what a plaintiff’s attorney may do during a defense medical exam (DME) (otherwise, arguably misleadingly, known as an “Independent” Medical Exam, or IME).

Here, the defendant asserted that when plaintiff and his counsel appeared for the original DME, the doctor told plaintiff’s counsel that he could not take any notes about the specific questions being asked, because it might violate copyright law. The court disagreed.

As to what is permissible, and impermissible, during an IME, Judge Bluth wrote:

It is well established that a plaintiff is entitled to have a representative of her choice present during the IME, provided the individual does not interfere with the IME or prevent the defendant’s doctor from conducting ‘a meaningful examination’ ” (Markel v Pure Power Boot Camp Inc., 171 AD3d 28, 29, 96 NYS3d 187 [1st Dept 2019] [finding that an IME observer’s notes were not discoverable as they were prepared in anticipation of litigation]).

However, that does not mean that a plaintiff can take audio or video recordings at an IME (Bermejo v New York City Health and Hospitals Corp., 135 AD3d 116, 144,21 NYS3d 78 [2d Dept 2015] [“The denial of requests for permission to videotape physical examinations has been upheld by various appellate courts in this State”]; see also Savarese v Yonkers Motors Corp., 205 AD2d 463, 614 NYS2d 4 [1st Dept 1994] [finding it was not an abuse of discretion to “deny plaintiff’s request to videotape or audiotape the ordered psychiatric examination in light of the fact that counsel will be present during the examination to protect plaintiff’s interests”]; Cooper v McInnes, 112 AD3d 1120, 977 NYS2d 767 [3d Dept 2013] [finding that the Supreme Court acted within its discretion to bar video or audio recording of psychological IME]). And video or audio recordings of IMEs are only permitted upon a showing of special and unusual circumstances (Bermejo, 135 AD3d at 144).

The Court finds that plaintiff’s counsel may take any notes he wishes during an IME. The caselaw cited above clearly provides that although a Court may disallow audio or video recording of an IME, a plaintiff (or his representative) may take notes at an IME. That is exactly what plaintiff’s counsel seeks to do here–take notes during the IME.

Judge Bluth rejected defendant’s copyright argument, noting, inter alia, that since an IME is an “inherently adversarial situation” that is “used solely for litigation purposes,” it would not be proper to “limit the ability of plaintiff’s counsel (or a representative) to take notes in order to zealously represent his or her client.”

Moreover, the rule proposed by defendant – permitting plaintiff to take notes during the IME about everything except the questions – was unworkable, in that there was no practical way to enforce it: the notes taken by the plaintiff at an IME are not discoverable, and a rule contemplating in camera inspection of those notes would not be workable, given the frequency with which it would likely occur.

Simply put, according to the court, “if the IME doctor is worried about violating a copyright, then he or she should use a different test during adversarial IMEs.”