In Comunale, Judge Lunn was faced with an issue of first impression: Must a defendant supply a medical report of an examining doctor who did not prepare a report detailing the results of his examination, and was not expected to testify at trial?
In determining that such a report must be supplied, Justice Lunn began his opinion by noting that in similar situations in which it was a plaintiff who resisted supplying a medical report because no written report was ever prepared, courts had uniformly held that plaintiffs could not frustrate disclosure by asking a physician not to prepare a written report.
Justice Lunn found explicit support for such decisions in the language of CPLR 3121(b), and 22 NYCRR 202.17, respectively. CPLR 3121(b) states: “A copy of a detailed written report of the examining physician setting out his findings and conclusions shall be delivered by the party seeking the examination to any party requesting to exchange therefore a copy of each report in his control of an examination made with respect to the mental or physical condition in controversy. Similarly, 22 NYCRR 202.17 provides that “Copies of the reports of medical providers making examinations pursuant to this section shall be served on all other parties within 45 days after the completion of the examination.” Justice Lunn determined that implicit in the statute’s and rule’s language was that a report must actually be prepared before it could be delivered or served. He also found no reason why such rationale should not apply to defendants as well as plaintiffs.
To hold otherwise, Justice Lunn concluded, would allow a defendant to “conduct an examination which was favorable to the plaintiff and not produce it, thereby prejudicing plaintiff and simultaneously undermining the truth seeking function of a trial.”
In light of the decision in Comunale, defense attorneys should no longer direct an examining physician not to prepare a report in order to avoid potentially damaging findings. Instead, attorneys would be wise to carefully consider what it is they wish to accomplish with an IME, weighing the benefits of a favorable report with the risks of unfavorable findings. Often times the medical records, diagnostic films and findings of plaintiff’s own physicians’ will provide sufficient material to oppose or mitigate the severity of an injury or the amount of a plaintiff’s damages. Too many defense attorneys automatically recommend that an IME be conducted without considering whether an IME is actually necessary or advisable in light of the potential for an unfavorable result. The Comunale decision illustrates the importance of undertaking such an analysis.
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