In conjunction with any personal injury actions that we pursue on behalf of our clients be they motor vehicle accidents, slip and falls, assaults, or workplace injuries, it is standard practice that the lawyers and insurance carriers representing the defendants to schedule a Defense Medical Examination (“DME”). Indeed, this is specifically permitted under our court Rules and allows a defendant to seek their own medical examination of an injured party to confirm the cause, extent and duration of all injuries sustained. While the concept presupposes that the examiners are indeed independent and objective, our experience suggests that many of these doctors are preconditioned to not finding causation, injury or residual effects from an accident. For that reason, we have long sought to have an independent observer attend these examinations to make sure that the proper testing protocols are being utilized, ample time is being spent, appropriate inquiries are being made and that the conclusions that they reach are based upon a reasonable degree of medical certainty as opposed to something else. Defense lawyers, for their part, have long resisted efforts for these third-party observations suggesting that it would somehow compromise the examination. We disagree and in fact, we have always felt very strongly that it would serve to support an objective assessment of a patient’s injuries and the effects therefrom, whatever they may be.
In a recent unanimous opinion written by New Jersey Supreme Court Associate Justice Rachel Wainer Apter, the Justices overruled part of an Appellate Division decision and placed the burden upon a defendant to justify any opposition to these requests on behalf of the injured Plaintiff. In finding that third-party observers may attend DMEs, the Court noted:
“We conclude that placing the burden on defendants to show why a neutral third-party observer or an unintrusive recording should not be permitted in a particular case best comports with the realities of DMEs and the provisions of our Court Rules. It also ensures fairness in our civil justice system.”
At Hagner & Zohlman, we routinely request that an independent person attend any DMEs performed on any of our clients as we believe it is very important to ensure that examinations are appropriately performed, objectively based and supported by science and medicine. If you or anyone you know has suffered an injury as a result of someone else’s negligence, please feel free to reach out to us directly. We would be happy to help.