As an experienced Middlesex County personal injury attorney, I am well aware of the abuses that can occur at a defense medical exam of my plaintiff client. The insurance company for the defendant driver may designate a physician to examine the plaintiff in the course of the accident lawsuit so that s/he can prepare a report and testify at trial as to the plaintiff’s condition. While the attorney for the insurer may characterize the exam as an independent medical exam, in fact the defense expert is being paid to minimize the victim’s condition to enable the insurer to pay less in settlement or a verdict, hardly
In order to ensure that any defense exam is fairly conducted, we always send a representative of my office to the exam to observe. I believe that this deters the examiner from mischaracterizing the words of our client, and also to see how long in fact the physician spends examining our client. Our representative is instructed not to speak to our client during the exam and not to answer for our client or to interfere with the exam, only to watch.
Prior to a recent defense exam involving our car crash victim client, we notified the insurance company attorney that we would be sending a representative, as usual, to the exam. The response of the insurer was to file a motion to bar our representative from attending. Previously, the Appellate Division had held in a 1976 decision that where a plaintiff did not intend to bring a representative, the plaintiff could use an unobtrusive recording device during the examination.
That was the law until last year, when the Appellate Division in DiFiore v. Pezic revisited the issue, and held that attendance at defense exams of plaintiff representatives would be decided on a case by case basis. The court determined that the plaintiff had the burden of justifying that attendance, and that a trial court could put restrictions on the conduct of the plaintiff representative.
We did agree in response to the insurance company’s motion to bar in our case that the representative would not speak to our client during the exam or to interfere with the exam. We did emphasize that due to our client’s fragile state that she needed to be accompanied to the exam. Accordingly the motion judge denied the insurance company’s motion and permitted our representative to attend the exam. Obviously each case is unique, but a plaintiff’s attorney should always fight for his client’s rights, as we did in this case.
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