In personal injury cases, it is common for the defense to conduct physical and mental examinations. These are commonly referred to as DME, defense medical examination, or IME, independent medical examinations. Naturally, these are inherently adversarial proceedings. So, in certain situations, the plaintiff or attorney may wish to record the examination. New Jersey case law determines when it is appropriate to record a DME. As recently as June 2023, the New Jersey Supreme Court has given clear guidelines reading the recording of DMEs.
In this recent case, DiFiore v. Pezic, 2023 N.J. LEXIS 647n(June 15, 2023), the Court placed the burden on the defendant. This means that the defendant is responsible for proving a DME should remain unrecorded. Without proper reasoning, facts and proof from the defendant, the plaintiff should be allowed to record the exam.
Additionally, this case affirmed older cases which create a case-by-case and fact specific standard of review for DMEs. This means that each case is reviewed on its own. The facts of each case may lend themselves to permitting or denying the recording of a DME. The court goes on to list certain factual situations which recording a DME would be permissible. First, a Plaintiff with a language barrier should be entitled to record their exam or have a third-party present. This is essential to ensure the accuracy of the communication between the plaintiff and defense medical examiner. Next, a young, child plaintiff with inexperience of legal or medical practices is likely permitted to record their exam or have a third-party observer present. Because of the adversarial nature of a DME as well as a plaintiff's future obligation to testify based on the exam, this may be difficult for a young child. Therefore, a recording or third-party observer can assist in preserving the accuracy of the exam. Finally, a plaintiff with cognitive issues is typically allowed to record their exam. A plaintiff with cognitive impairment may have difficulty understanding the nature of questions asked during the DME as well as difficulty recalling the information at a later date or testifying and so a recording can preserve the accuracy of the exam.
Although the court has explicitly mentioned these special situations which may entitle the plaintiff to record or have a third-party observer present, the list is not exhaustive. There could be additional factors which contribute to the court's decision. The court may look for “special circumstances” as a contributing factor. The case as a whole will be reviewed in light of preserving the accuracy of the exam. The most important takeaway is justice for both parties. So, the court looks at all the facts in determining whether justice is better served by granting or denying a recording or third-parties presence.
As mentioned, the central focus in this injury is accuracy and justice. Therefore, courts have explicitly decided that the defense’s examining doctor opinion holds little to no value in this injury. Stated otherwise, the doctor wishes to have the exam unrecorded is not an important factor in the court's decision. So, even if a doctor claims that ethical guidelines prevent them from recording an exam, or that recording affects the exam itself, courts value accuracy over the doctor’s wishes.
Furthermore, courts have explicitly held that the recording device or third-party observer must be non-obtrusive. This is because courts want to prevent the presence of a recording device or third-party from interfering with the exam. Arguments can be made that both may affect an examination consciously or subconsciously. However, courts have considered this notion and still place greater value on the accuracy of the exam. Therefore, they allow device that will not interfere with the exam. In cases of recording, this means the device must be small. Courts have noted that devices the size of cellphones can be non-obtrusive. However, courts have also noted that tripods with camera and audio recording capabilities can be set up in a non-obtrusive manner. As for third-party observers, they cannot have any correlation with the litigation. That means that an attorney may not be a TPO, in an effort to prevent an even more adversarial proceeding. The TPO must be neutral to the litigation. Additionally, the TPO may not intervene with the medical exam. The TPO is simply meant to observe and may later testify as to the contents of the exam.
Defense medical exams are extremely common in personal injury cases. Yet, the laws regarding the permissible recording of DMEs can be complex. This is an area of law that has seen many changes and advances over the years. The most recent advancement, which was previously discussed, was a vast shift, making the inquiry pro-plaintiff. Because of the details and fact-based inquiries, you should feel free to reach out to a personal injury attorney should you have further questions. One of our attorneys at Scura, Wigfield, Heyer, Stevens and Cammarota, LLP may be able to assist you with your questions and concerns.
