In a recent unpublished New Jersey appeals court decision, Voleriano v. Voleriano, the Appellate Division found that a plaintiff had no right to tape record his independent medical examination (IME). The plaintiff had refused to attend his neurological and orthopedic IMEs unless he was permitted to tape record them. The trial court judge denied the plaintiff's request to tape record the IMEs and issued an order requiring that the plaintiff attend both exams.
The Appellate Division agreed with the rationale of the trial court judge in reaching this decision. The trial court distinguished this scenario from a prior case, B.D. v. Carley, which dealt with psychological injuries. In Carley, the court permitted a tape recording during a psychiatric exam. The trial court in Voleriano pointed out that the nature of the exams are different between a psychological exam versus a physical examination that compelled a different result on this issue.
The court concluded that "while there may be some small incremental addition to the truth gathering process of discovery," it was not enough to warrant the presence of counsel or audio/video taping of an IME. The court found that the practice of attending or recording IMEs would clearly limit the choice of doctors to the defense. Some doctors would simply refuse IMEs if this procedure was required which would force defendants to chose another doctor.
The court explained that there was a sufficient policy reason to permit recording of psychiatric exams which does not exist for recording IMEs of physical injuries. With psychological injuries, virtually the only way to elicit their nature and discussion is through conversation between physician and patient. This conversation, its content, forms of expression which are highly subjective, becomes the IME upon which the doctor's opinion is based. Thus, preserving this conversation permits both parties to have direct access to this exam.
Physical injury IMEs, however, rely on the doctor's objective, sensory impressions and observations of the injury which cannot be captured on tape. Thus, a recording of a physical IME does not provide the same useful evidence as in a psychiatric exam. The court noted that the most useful evidence in a physical IME was actually the examiner's report. Accordingly, based upon the above policy reason, as well as some additional factors, the court ruled that absent special circumstances, physical injury IMEs should occur without taping or attendance by counsel.
Ms. Liebman is a member of Capehart & Scatchard's Litigation Department in its Mt. Laurel office. For more information, contact Ms. Liebman at 856.914.2052, by fax at 856.235.2786 or by e-mail at bliebman@capehart.com.