Appellate Division Issues Guidelines for Third Parties Recording Defense Medical Exams
May a plaintiff be accompanied by a third party at a defense medical exam or require that the examination be recorded? “It depends.”–Every lawyer ever.
On May 3, 2022, the Appellate Division, in the published decision of Difiore v. Pezec, was tasked with resolving “when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments, or language barriers can be accompanied by a third party to a defense medical examination (“DME”), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.” 472 N.J. Super. 100, 104 (App. Div. 2022). The matter arose out of three consolidated personal injury cases.
DiFiore v. Pezic (A-2826-20)
Kathleen DiFiore was injured while a passenger in a taxi. Id. at 111. She alleged the accident caused her to suffer cognitive losses as well as physical injuries. Id. at 112. Pursuant to Rule 4:19, the defendants scheduled her for a neuropsychological exam with Dr. Keith Benoff, a psychologist, in November 2020. Id. at 113. The exam, however, was thwarted by a number of disagreements concerning the conditions of the exam, including Ms. DiFiore’s demand that it be attended by both her medical proxy and a nurse practitioner and that it be recorded. Ibid.
The crux of the plaintiff’s argument was that she suffered severe memory deficits and cognitive issues that could “impede her ability to recall and testify with precision about what took place during the exam.” Id. at 123. On the other hand, the defense argued that the presence of third parties would prevent the examining doctor from “fairly and accurately assessing a patient from a neuropsychological perspective if a representative is permitted to answer questions on the patient’s behalf.” Id. at 114-15.
The trial judge issued an opinion on January 29, 2021, barring third parties from attending the exam but permitted only an audio—not a video—recording device to be used in the room. Id. at 115. Subsequently, the plaintiff moved for leave to appeal.
Remache-Robalino v. Boulous (A-1331-21)
Jorge Remache-Robalino, a native Spanish speaker, brought a medical malpractice action against two treating physicians and their employer after they failed to discover a metal fragment that had penetrated his right eye at work. Id. at 115. Due to their failure, he alleged that he went blind in his right eye. Ibid. He further alleged that his condition resulted in depression, anxiety, and impaired concentration. Ibid.
The defendants scheduled him to undergo a neuropsychological examination. Ibid. Plaintiff agreed to attend the exam but on the condition that he be allowed to make an audio recording of the session. Ibid. Plaintiff’s chief concern was that his language barrier might lead to inaccurate responses. Ibid.
The trial judge, upon several reconsiderations, ultimately denied the sought-after relief, directing that the plaintiff was not to record the exam. Id. at 117. An emergent interlocutory appeal followed. Id. at 118.
Deleon v. Achilles (A-0367-21)
The third appeal concerned an orthopedic defense medical exam rather than a neuropsychological exam. There, the plaintiff, Dora Deleon, a non-native English speaker, suffered a slip and fall, which she alleged resulted in severe injuries to her cervical and lumbar spines and bilateral knees. Id. at 118.
Similar to the other appeals, Ms. Deleon, prior to the defense medical exam, advised that she intended to bring a third party to her exam. Ibid. Specifically, she intended to be accompanied by a nurse practitioner. Ibid. Defendants objected to the attendance of the third party and filed a motion to compel an unrecorded and unaccompanied defense medical exam. Id. at 119. Plaintiff opposed the motion arguing that she needed to be accompanied by a nurse practitioner for evidence preservation purposes. Ibid. She did not, however, request a recording device in addition to or as an alternative to the third party, as was requested by the aforementioned matters.
The trial judge issued an order compelling the exam and further ordered that it be “unmonitored and unrecorded.” Ibid. Plaintiff moved for leave to appeal. Ibid.
The Consolidated Appeal
The plaintiffs all contended that their requests were necessary to describe what occurred during the defense medical exam accurately and thus preserve evidence to refute the defense expert’s opinion effectively. On the other hand, the defendants argued that recent professional literature generally highlighted concerns about the detrimental impact of third-party attendance and the recording of neuropsychological examinations. Specifically, the defendants noted that third parties and recording devices often might distract the plaintiff and interfere with the exam.
Judge Sabatino, P.J.A.D., writing for the panel, saw a need for a uniform procedure to deal with the issues presented. Id. at 129. He noted that while Rule 4:19 provided the defendant, in a personal injury case, the right to obtain a mental or physical examination of the plaintiff, it was silent as to whether the exam could be recorded or whether a third party could attend. Ibid. Judge Sabatino further noted that while B.D. v. Carley allowed “the unobtrusive audio recording of a neuropsychological DME,” it did not decide the issue of whether it may be video recorded or attended by a third party. 307 N.J. Super. 259 (App. Div. 1998).
Therefore, while suggesting that a Supreme Court committee develop procedures governing these issues, pending such an outcome, the Appellate Division set forth the following six (6) guidelines:
- 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.
- Despite contrary language in Carley, it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.
- 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.
- 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 and sequence 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 other otherwise divulged.
- 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.
- 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.
[Id. at 106-07].
Plaintiffs have since motioned for leave to appeal to the New Jersey Supreme Court. Assuming the Court grants the motion, it may have the opportunity to develop governing factors and procedures as Judge Sabatino suggested.
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