Enacts the "adversarial medical examination procedure act"

1 Co-sponsor

• Kevin S. Parker

BILL NUMBER:S5373

Title of bill

An act to amend the civil practice law and rules, the insurance law, the workers' compensation law, the general municipal law and the court of claims act, in relation to enacting the "adversarial medical examination procedure act"

Purpose

The purpose of this bill is to ensure that physical and mental examinations conducted in the course of civil litigation proceed fairly and in accordance with the civil practice law and rules and due process.

Summary of provisions

Section 1 titles the act as the "adversarial medical examination procedure act".

Section 2 provides the legislative findings forming the basis for the act.

Section 3 amends section 3121 of the civil practice law and rules to designate physical and mental examinations conducted in the course of civil litigation as "adversarial medical examinations; to inform the person subject to the examination of their right to have a representative present during such examination and of their right to record or tape such examination; to protect the person subject to the adversarial medical examination from being required to produce any documents or supply any written answers to questions put to them at such examination except as in response to properly served discovery demands made pursuant to the civil practice law and rules; and to require that a report of the adversarial medical examination shall be delivered to each party within thirty days.

Section 4 amends section 5102 of the insurance law prescribe procedures for the conducting of adversarial medical examinations.

Sections 5 through 12 amends various sections of the workers' compensation law to prescribe procedures for the conducting of adversarial medical examinations.

Section 13 amends various sections of the general municipal law to prescribe procedures for the conducting of adversarial medical examinations by cities, counties, towns, villages, fire districts, ambulance districts, school districts or public authorities.

Section 14 amends section 17 -a of the court of claims act to describe the conducting of a physical examination as an "adversarial medical examination."

Section 15 provides that the act shall take effect immediately and apply to currently pending actions and proceedings, and to proceedings commenced subsequent to such date.

Justification

The conducting of physical and mental examinations in the course of civil litigation has evolved in a manner inconsistent with the civil practice law and rules and fundamental notions of due process. Indeed, the commonly used term for such examinations, an "independent medical examination," is itself a misnomer because the physician conducting such examination is not at all independent, but is in fact being compensated by a party or insurer whose interests are typically adverse to those of the party being examined. Further, parties being examined are frequently required to provide written responses to questions outside the discovery process prescribed in the civil practice law and rules and without the opportunity to obtain advice of counsel, even though such written responses can and are being used as admissions and/or to later impeach the examined party in the course of such proceeding. Accordingly, the name by which such an examination is called needs to be changed to reflect the true adversarial nature of such examination; and the process for obtaining information from the party to be examined which is necessary to the proper conducting of the examination needs to be brought within the carefully considered discovery process which already exists in the civil practice law and rules.

Legislative history

A.10742 (2010).

Fiscal implications

None.

Effective date

This act shall take effect immediately and shall apply to all currently pending actions and proceedings, and to proceedings commenced subsequent to such date.