Can You Record An Independent Medical Examination In A Medical Malpractice Case? Often times in medical malpractice and other personal injury cases that are in litigation, the defense requests that the plaintiff submit to an “independent” medical examination (“IME”) by a health care professional chosen by the defense (we place “independent” in quotes because the term may be misleading – it is only independent in the sense that the chosen provider is not a party to the lawsuit (but may still be biased or have a significant financial incentive inasmuch as many defense IME doctors make a lot of money providing IME examinations for defense law firms and the insurance companies they represent, and IME doctors wish to continue to do so).
Many states have court rules that address when and how IMEs may be requested and conducted. Some states require that the party requesting an IME to petition the court for approval of the parameters for an IME. For instance, in Maryland, Maryland Rule 2-423 (“Mental or Physical Examination of Persons”) provides: “When the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy, the court may order the party to submit to a mental or physical examination by a suitably licensed or certified examiner or to produce for examination the person in the custody or under the legal control of the party. The order may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order may regulate the filing and distribution of a report of findings and conclusions and the testimony at trial by the examiner, the payment of expenses, and any other relevant matters.”
Nonetheless, many Maryland lawyers will negotiate the conditions for an IME that they deem appropriate without resorting to invoking Maryland Rule 2-423.
In New Jersey, the Superior Court of New Jersey Appellate Division recently (May 3, 2022) addressed its Rule 4:19, which governs the terms under which defendants in civil actions can arrange to have a qualified medical or health care professional examine the condition of a plaintiff alleging bodily or mental health injury caused by the defendants. The Superior Court stated: “we set forth the following holdings, which we repeat from our Introduction: First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements … Second, despite contrary language in Carley, we hold that, going forward, it shall be the plaintiff’s burden to justify to the court that third-party presence or recording, or both, is appropriate for a DME in a particular case, absent consent to those conditions … Third, given advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff … Fourth, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes
of the case and not otherwise divulged … Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam … Sixth, if a foreign or sign language interpreter is needed for the exam the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.” Source
If you or a loved one suffered a serious injury (or worse) as a result of medical negligence in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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