Appeals Court Holds That Defense Counsel Is Not Entitled to a Pre-Surgery Independent/Insurance Medical Exam

On June 28, 2023, the Appellate Division, Second Department joined the First Department in holding that a plaintiff requiring surgery for the injuries suffered in an accident is not required to delay surgery and prolong his/her suffering, just so that the defendant who is being sued for those injuries can have their physician perform an "Independent" or "Insurance Medical Exam" (IME). It's been two years since the First Department refused to impose the drastic sanction of a finding of spoliation of evidence, when a plaintiff underwent surgery without notifying the defense and affording them the opportunity to conduct an IME. (See, Gilliam v Uni Holdings, LLC, 201 AD3d 83 (1 st Dept 2021) The Second Department agreed with the First Department's holding that "a spoliation analysis should not be applied to a person's bodily condition...and is antithetical to our belief in personal liberty and control over our own bodies."

The Second Department explained that: "It is not reasonable to require a plaintiff to delay medical treatment, and potentially prolong his or her suffering, solely to allow a defendant to examine the plaintiff's body in a presurgical state." Fadeau v Corona Indus. Corp., 2023 N.Y. Slip Op. 03453

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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