Can You Get Surgery Before Your Defense Medical Exam?

Will your personal injury case be dismissed if you don’t show up for your medical exam and then get surgery before your exam is rescheduled with the insurance defense doctor?

After your deposition (EBT) in a personal injury case, the defense attorney hired by the insurance company will send you to one or more of their doctors to examine your injuries.

Every personal injury lawyer in New York has had clients who had surgery after their deposition but before the defense doctor had the opportunity to examine the injury prior to the surgery. We certainly have had quite a few accident cases like that.

Every time our client had surgery just before the defense medical exam, the defense doctor rescheduled the exam for two or three months after the surgery. Defense doctors can’t risk further injuring someone after surgery.

surgeons performing surgery

Hey, Let’s Try to Get the Plaintiff’s Case Dismissed!

In the personal injury case below, an out-of-the-box thinking defense lawyer thought, hey, let’s try to get the plaintiff’s case dismissed or at least prevent the plaintiff from using the surgery at trial as punishment for having surgery before the defense doctor could examine the plaintiff.

The argument was that the plaintiff failed to preserve evidence of the injury prior to the surgery.

There is a principle in law called spoliation of evidence that occurs when the plaintiff or defendant fails to preserve evidence or intentionally destroys the evidence.

An example is a video showing the accident. For instance, an injured person has a slip and fall accident in a store that was captured on video. The personal injury lawyer will send a letter to the store requiring the store to preserve the video so it can be viewed later and used at a trial.

If the store then loses the video or says they can’t find the video (this happens a lot), the personal injury lawyer will ask the court to impose severe penalties on the defendant.

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Can Your Case Be Dismissed for Getting Surgery Before the Defense Medical Exam?

So, can a defendant subject the plaintiff to severe penalties when the injured plaintiff fails to preserve their injured body in its pre-surgically repaired condition for a medical examination by the defense doctor?

In an unusual personal injury case, Gilliam v. UNI Holdings, LLC, No. 2020-34595, 6 (N.Y. Sup. Ct. 2020), the defense lawyer claimed you do have to preserve your body, remain in pain, and even risk making the injury worse, until you are examined by the defense doctor.

Unbelievably, the New York Supreme Court agreed! The court ordered, “that the plaintiff is precluded from offering any evidence regarding an injury or surgery to her L4-L5 disc or recovering any damages for said injury or surgery.”

Fortunately, smarter minds at the Appellate Division disagreed and stated, “…the condition of one’s body is not the type of evidence that is subject to a spoliation analysis.”

The Appellate Division stated this is what the defense lawyer wanted,

“After completing the ME [Medical Exam], defendant moved to dismiss plaintiff’s complaint, pursuant to CPLR 3126, claiming that plaintiff’s surgery resulted in the spoliation of critical evidence, and alternatively, sought an order issuing spoliation sanctions for plaintiff’s failure to appear for an ME and intentional destruction of evidence. Defendant argued that plaintiff was obligated to preserve the condition of her spine as it was evidence and the surgery “drastically” altered the spine’s condition thereby prejudicing defendant. Further, defendant stated that because there was nothing submitted by plaintiff suggesting that the surgery was urgent, her pre-ME discectomy amounted to willful alteration of evidence.”

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What Happened?

In the personal injury case of Jekeya Gilliam, she was struck by a part of the bathroom ceiling when it fell on her in her Bronx apartment. The falling ceiling injured her lumbar spine causing lower back pain and her personal injury lawyer in The Bronx filed a lawsuit against the building owner and landlord in New York Supreme Court for Bronx County.

The New York Supreme Court ordered the plaintiff to appear for an “independent” medical examination within 45 days of her deposition. It is common in every personal injury case to order the exam within 45 or 60 days of the deposition.

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What is an IME, ME, or DME?

Defense lawyers and insurance companies call their exams an IME for “Independent” Medical Exam, ostensibly, to be misleading.

Ostensibly misled, the New York Supreme Court incorrectly called the exam an “Independent” Medical Examination.

The Appellate Division correctly called the exam simply an ME for Medical Examination.

We call these exams a DME for Defense Medical Examination because they are NOT independent. You can read at the® Personal Injury Research Library about a DME or Defense Medical Exam and why personal injury lawyers should use an IME companion service to accompany clients at medical exams.

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Failed to Appear at the Defense Medical Exam

After her deposition, the defense designated Daniel Feuer, M.D. to conduct the medical examination of the injury. We have had many clients examined by Dr. Daniel Feuer.

The injured plaintiff, Jekeya Gilliam, was required to appear for an “independent” medical examination (IME) to be conducted by the defense doctor in March 2019.

The injured plaintiff failed to appear at the defense medical examination, and the examination was rescheduled for May, but in April the plaintiff had surgery for a discectomy to her lumbar spine, and the defense doctor was no longer able to examine her in her pre-surgery condition.

The New York Supreme Court found that getting surgery prior to appearing for the examination was spoliation of evidence, and sanctioned the plaintiff. The New York Supreme Court did not dismiss her personal injury case but ordered that she was not allowed to offer any evidence regarding an injury or surgery to her L4-L5 disc or from receiving any money for that injury or surgery.

The Appellate Division reversed the Supreme Court order and held, that a person’s body is fundamentally different from inanimate evidence to which spoliation sanctions apply.

The Appellate Division stated,

To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.

It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.

The Appellate Division held, that the defense lawyer’s claim that the plaintiff’s surgery was not an emergency, and therefore could have been delayed, did not have any bearing on the decision.

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Phil Franckel is well-known in New York and has been a personal injury lawyer since 1989. He is a Founding Partner of 1-800-HURT-911, LLP®, the Personal Injury Dream Team™, and a former Member Board of Directors of the New York State Trial Lawyers Association. He has an Avvo Top 10  Rating, Avvo Client’s Choice Award with all 5-star reviews, Avvo Top Contributor Award, Multi-Million Dollar Trial Lawyers Award, and others. See Mr. Franckel’s bio for areas of expertise.

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Philip L. Franckel, Esq. is one of the HURT911® Dream Team™ Founding Partners at 1-800-HURT-911® New York; He has a 10 Avvo rating; Avvo Client’s Choice with all 5-star reviews; Avvo Top Contributor; and a former Member of the Board of Directors of the New York State Trial Lawyers Association.

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