Evolving Landscape of Independent Medical Examinations in NJ

Recent developments in New Jersey law have significantly altered the approach to Independent Medical Examinations (IMEs) in bodily injury cases, particularly for defendants. A pivotal decision by the New Jersey Supreme Court in DiFiore v. Pezic and the subsequent amendment to New Jersey Rule 4:19-2 have shifted the burden and introduced critical considerations for all parties involved.

The Impact of DiFiore v. Pezic

In DiFiore, the Court addressed the contentious issue of third-party observers at IMEs. The ruling established a case-by-case balancing test for trial judges, requiring them to weigh the need for an accurate record and the power imbalance between medical professionals and patients against any legitimate concerns about the expert’s ability to conduct an objective assessment. Factors such as the plaintiff’s age, communication abilities, cognitive limitations, psychological impairments, legal system inexperience, and language barriers were identified as relevant, though not determinative, in this analysis.

Crucially, DiFiore shifted the onus to defendants to demonstrate why a plaintiff should be denied the presence of a third-party observer at an IME. This decision reflects a broader trend of plaintiffs seeking increased transparency and fairness in the IME process, often through independent nurses or audio/visual recordings.

Rule 4:19-2 and Procedural Changes

Following DiFiore, amended Rule 4:19-2 now mandates that upon receipt of an IME notice, the party scheduled for the examination must, within fourteen days, serve a notice of intent to utilize a third-party observer. If the party requesting the IME objects, they must then seek a protective order under Rule 4:10-3.

This rule effectively codifies the shift in burden established by DiFiore, requiring defendants to seek protective orders to prevent third-party observation proactively.

Practical Considerations for Defendants

While DiFiore and Rule 4:19-2 have placed a greater burden on defendants, subsequent trial court decisions indicate that protective orders can still be obtained. Key considerations for defendants seeking such orders include:

• Expert Consultation: Confirming the IME expert’s comfort level with potential third-party observers.
• Timing and Nature of the Request: Analyzing when and how the plaintiff’s counsel requested the observer.
• Observer Neutrality: Assessing the true neutrality of the proposed third-party observer.
• Plaintiff’s Deposition and Demonstrated Need: Evaluating whether the plaintiff’s deposition or other evidence suggests a genuine need for an observer due to cognitive, psychological, or language barriers.
• Type of IME: Considering the specific nature of the requested examination.

Conclusion

The post-DiFiore landscape necessitates a proactive and strategic approach to IMEs. Defendants must be prepared to address the potential for third-party observers from the outset of litigation and understand the factors that influence the granting of protective orders. As case law develops, parties must remain vigilant in navigating these evolving procedural requirements to ensure fairness and accuracy in the IME process.