Plaintiffs’ lawyers seek to observe medical exams

From brain-injury cases to emotional-distress claims, some plaintiffs’ lawyers are complaining that they are not receiving a fair opportunity to attend independent medical exams requested by defense counsel.

Massachusetts Rule of Civil Procedure 35 allows a defendant to compel a plaintiff to submit to a medical examination during pre-trial discovery, but whether a plaintiff’s lawyer may accompany a client to the exam is a matter of discretion for the judge.

Lawyers say the rulings on whether a lawyer can attend a client’s medical exams have been inconsistent.

“Different judges handle it differently, and that can create a lot of confusion,” said plaintiffs’ lawyer Marylin A. Beck of Dedham.

Plaintiffs’ attorneys have long argued that blanket approval to attend or send an observer to clients’ independent medical exams would allow them to monitor any inappropriate questioning the doctor might engage in with their client.

Kenneth I. Kolpan, a plaintiffs’ attorney in Boston whose request to attend a client’s medical exam in a brain-injury case was recently denied, said that “it’s a matter of a right – the defense has to show good cause for conducting the exam. Once you show good cause, the court sets the condition of the exam, not the examiner.”

But physicians and defense attorneys, who often object to their opponents’ requests to attend the exams, counter that the very presence of an observer can threaten the validity of the exam.

Independent medical exams “take place under conditions that allow examiners to make scientifically valid observations,” said David T. Mitrou of Boston, who represented the defense in the brain-injury case. “From our perspective, which is supported by the literature, examinations by a neuropsychologist and a psychiatrist should not have the presence of a third-party observer.”

Dr. William Patterson, who has practiced occupational and environmental medicine in Massachusetts for 25 years and performs independent medical exams, agreed.

“My own feeling is that I would not like to have a plaintiff’s or defense attorney attend the exam because I think it would interfere with my ability to take a careful detailed history,” he said.

Bus accident

In the brain-injury case, Mortimer v. MBTA, the plaintiff sued over brain injuries she claimed to have suffered after being struck by a bus operated by the MBTA.

The plaintiff claims she is having memory and concentration problems and that she has developed significant psychological and emotional issues as a result. Those issues, she contends, have prevented her from returning to work and resuming a normal life.

The defense filed a Rule 35 motion seeking to have a psychiatrist, neuropsychologist and neurologist examine the plaintiff, which Attorney Kolpan opposed.

“I opposed it on the basis that an observer ought to be present to ensure that an accurate recollection of what goes on could be reported back to me,” he said. “The plaintiff could not – because of her memory problems – ensure the exams were properly conducted. Otherwise, it is only the examiner’s version of what occurred that may be known. It would also ensure that testing is done according to the professional requirements.”

Kolpan said an independent medical exam that is not observed or recorded could turn into “an opportunity for the defense to discover information through use of questions that may not be proper. For example, they may ask questions about the facts of the incident and then report it back to counsel and say, ‘That’s inconsistent with how she testified before.’”

But Mitrou responded and won, arguing that the psychiatrist and neuropsychologist exams would be compromised if the plaintiff sent an observer to attend or record them.

From the defendant’s perspective, in a case like this, “that type of request for an observer depends upon the nature of the examination,” he said.

The neuropsychologist exam is compared against standardized test results, “which are based upon the one-on-one administration between the neuropsychologist and the examinee,” he said. “If there’s a third party present, you’re no longer comparing apples to apples. The defense expert would be in the position of trying to make assessments or evaluations that you could not scientifically validate against the standardized tests or results.”

Mitrou said the defendant also opposed recording the session because “there’s research in the Journal of Forensic Neuropsychology that suggests the [effect] of the observer doesn’t need to be physical, but can be shown when someone is either audiotaped or videotaped. It just presents a confounding variable in the process.”

‘No blanket rule’

What little caselaw exists on the issue suggests that there is no blanket rule, according to Mitrou, although he pointed to several Superior Court cases in which observers were not allowed.

In the 2003 Middlesex Superior Court case Kutner v. Urban, for example, the defendant in a dog-bite case received a protective order barring the plaintiff’s attorney from attending a medical exam. The judge found that the plaintiff had “provided no evidence establishing good cause for the presence of her attorney during the … exam.”

Patterson said he has never had a plaintiff’s attorney attend a medical exam he performed, and rarely been asked to allow it.

But plaintiffs’ attorney J. Michael Conley of Braintree said in many instances he tries to send a representative to Rule 35 exams. The two sides can usually work things out without a court order, he said, although brain-injury cases tend to be especially thorny.

“I don’t see how our presence impacts [an exam],” he said. “With some experts, it’s like a second deposition of our client. You should be there. If not, it’s like being kept out of your own client’s deposition.”

But Patterson said the presence of an attorney “would to some degree inhibit the patient and influence the relationship. Patients would always be asking themselves, ‘What would my attorney want me to say?’”

He notes, however, that independent medical exams are generally accepted as not creating an official doctor-patient relationship.

Questions or comments should be directed to the writer at: noah.schaffer@lawyersweekly.com