Recent Supreme Court Order permits DME Nurse Observer or Recordings at Defense Medical Exams

Recent Supreme Court Order permits DME Nurse Observer or Recordings at Defense Medical Exams

According to New Jersey Court Rule 4:19, in a personal injury case the defendant can arrange to have a DME Nurse Observer to attend  an exam where a qualified medical or health care professional examine the condition of a plaintiff alleging bodily or mental health injury caused by the defendants.

Kathleen DiFiore v. Tomo Pezic et al.Dore Deleon v. The Achilles Foot and Ankle Group et al.; and Jorge Remache-Robalino v. Nader Boulos M.D. et al. (A-58/59/60 September Term 2021, 087091), all these three cases were on appeal from the Appellate Division. The Appellate Division held that in the absence of consent, plaintiffs must seek court permission and justify to the court why a third-party observer or recording is necessary in their case, basically putting the burden of proof on the plaintiff. In each one of these cases, the plaintiffs alleged either cognitive limitations, psychological impairments or language barriers and therefore wanted to record the examinations or have a third-party observer.

DME Nurse Observer - Supreme Court Ruling

DME Nurse Observer – Supreme Court Ruling

Ruling in favor of DME Nurse Observer:

However, the New Jersey Supreme Court disagreed in part to the Appellate Division’s decision and sought to answer the questions of (1) who may attend a DME noticed pursuant to Rule 4:19; and (2) whether and how DMEs may be recorded, when a plaintiff has alleged cognitive limitations, psychological impairments, or language barriers. The unanimous decision was written by Justice Rachel Wainer Apter and applied to all of these three consolidated cases for purposes of appeal.

In its decision, the Supreme Court clarified that once a defendant issues a notice to the plaintiff of a DME, it is the plaintiff’s responsibility to inform the defendant if they wish to have a third-party observer such as DME Nurse Observer present during the examination or record the same. The court also instructed that in case of an objection from the defendant then both parties should meet to resolve the dispute and if this proves unsuccessful then the defendant can move for a protective order pursuant to Rule 4:10-3, seeking to prevent a third-party observer or recording of the DME or both.

The major difference between the Supreme Court and the Appellate Division decisions was whether the burden should be on the plaintiff to show that a recording or observation was necessary versus upon the defendant. The Supreme Court ruled as follows “We conclude that placing the burden on defendants to show why a neutral third-party observer such as DME Nurse Observer or an unobstructive recording should not be permitted in a particular case best comports with the realities of DMEs and the text of  “Rule 4:10-1. Discovery Methods.” It also ensures fairness in our civil justice system.”

The court noted that “factors including a plaintiff’s cognitive limitations, psychological impairments, language barriers, age and inexperience with the legal system may weigh in favor of allowing unobstructive recording in the presence of a neutral third-party observer such as DME Nurse Observer. Although defense neuropsychologist cannot dictate the terms under which the DMEs are held, they can raise concerns that may weigh against recording or third-party observation in particular instances”.

Who can attend the exam with plaintiff:

However, the Supreme Court affirmed the Appellate Division’s core holding that the trial court should determine on a case-by-case basis what conditions, if any to place on a DME, which would include who may attend and whether it may be recorded.  The Court affirmed that video recording, in addition to audio recording, should be included in the range of options.  Further, the Court held that the parties should enter a protective order when a defense expert is concerned about the disclosure for proprietary information.  When third-party observation is permitted, the trial court shall impose reasonable conditions to prevent any disruption or interference with the exam.

Very significantly, the Court applied its holding only to neutral third-party observers, not attorneys.  The Court made it clear that its holding was limited to third-party observers, not third parties who seek to interfere with or disrupt the exam.

Last, the Supreme Court noted that its decision only involved defense medical examinations.  It did not decide whether defendants should be permitted recording or third-party observation and examinations conducted by plaintiff’s treating physicians or non-treating physicians.  The Supreme Court referred the matter to the Civil Practice Committee “whether there should be any provision to allow defendants to record or observe examinations by non-treating doctors arranged by plaintiffs’ counsel solely for the purposes of litigation.”

Med League Support Services offers Defense Medical Exam, DME Nurse Observer service nationwide.  Please call or email us to discuss your next case!

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