The New York Appellate Division, Second Department Restricts Scope of Independent Medical Examination.

In a rather unusual case, the New York Appellate Division, Second Department held that there are limits to how far a defendant can go in examining a medical malpractice plaintiff during an Independent Medical Examination in New York. In the case D’Adamo v Saint Dominic’s Home decided on September 13, 2011, the Second Department was confronted with a defendant whose examining doctor wanted to perform a host of invasive examinations upon a non-communicative plaintiff who suffered from both mental and physical disabilities. The 19-year old plaintiff was a resident of the defendant’s group home as he suffered from mental retardation, cerebral palsy and autism. Through his guardian, the plaintiff alleged that the defendant’s malpractice caused him to sustain severe damage to his colon resulting in loss of a length of his colon and a permanent colostomy bag.

It is well-settled law in New York that a defendant is entitled to a medical examination of a plaintiff who places his physical condition in issue. It is also well-settled that the medical examination cannot be invasive in nature. In this case, the examining doctor chosen by the defendant initially sought to perform a rectal exam on the plaintiff with a rigid sigmoidoscope. Counsel for the plaintiff rightfully objected on the basis that the examination sought was clearly invasive and posed risks beyond that of a simple medical examination given the physical and mental condition of the plaintiff. The defendant and the examining doctor suggested alternative examinations involving a digital rectal examination, a pediatric sigmoidoscope and possible sedation. The plaintiff’s counsel again objected on the same basis. The Appellate Division, Second Department agreed that these examinations were too invasive and denied the defendant’s request.