Refusing To Be a "Test Case"; Ohio Court Denies Plaintiff's Counsel Access To Doctor's Office During Plaintiff's Independent Medical Examination

Ohio – Discovery Practice

In Ohio, plaintiff attorneys have operated with an assumption that they can attend the defense's independent medical examinations of their clients. In a recent case, our Akron office challenged that position and won. The court was not impressed with the plaintiff's arguments, and it "decline[d] to be drawn into such a 'test case.'"

With guidance from federal courts across the country, the court refused "to establish a precedent as some 'test case' to micromanage what a physician does in the examination room." It concluded that the counsel's "presence at the IME would have a tendency to chill the exchange and free flow of information, and become potentially disruptive."

Although some states have rules that explicitly allow counsel to be present at an examination, Ohio does not. In Ohio, the Civil Rules do not explicitly grant or deny a party the right to have a third party, particularly a lawyer, attend an independent medical examination. A 1970 Ohio Supreme Court opinion in Lambdin v. Brenton (1970), 21 Ohio St.2d 21, 22 found that the decision to permit or exclude an attorney from a physical examination is within the sound discretion of the trial court. By comparison, "[t]he overwhelming weight of authority in federal courts is against allowing an attorney or recording device in an [independent medical examination]." Letcher v. Rapid City Reg'l Hosp., No. 09-5008-JLV, 2010 U.S. Dist. LEXIS 46959, at *18, citing William S. Wyatt and Richard A. Bales, The Presence of Third Parties at Rule 35 Examinations, 71 Temp. L. Rev. 103, 127 (1998).

The presence of a plaintiff's attorney at an independent medical examination interferes with and defeats the purpose of the examination. The need for a private and personal exchange between the plaintiff and the examining physician is self-evident, and an observer's presence would lend a degree of artificiality to the examination. Allowing the presence of a third party who has an interest in the outcome of the examination could inhibit a plaintiff from communicating candidly during the exam and is ultimately inimical to the examination itself. An attorney's presence could hinder the examining doctor's ability to establish a rapport with the plaintiff. Further, the attorney's presence could cause the examiner, consciously or unconsciously, to guard, alter or disguise her responses. Since the plaintiff's expert examines the plaintiff in private and without the intrusion of the defendants or their representatives, courts should accord the defendants' experts the same privilege.

Furthermore, the plaintiff suffers no disadvantage by the absence of her attorney; plaintiff's counsel can still obtain a copy of the examining physician's report, arrange for an examination of his own, file motions in limine and cross examine the physician in a discovery deposition and at trial. Thus, other protective devices are still available to plaintiff's counsel. Additionally, courts are also concerned that the presence of counsel could create possible grounds for the lawyer to have to withdraw as he would then become a witness to the case. States, like Ohio, have rules of professional conduct that prohibit an attorney from acting as both a lawyer and a witness during trial. If counsel used his observations as the basis for his cross-examination, it would in effect make him a witness.

Federal courts, and now this Ohio court, have found that allowing a third person to attend the examination subverts the Civil Rule's purpose for the examination - to put the plaintiff and the defendant on equal footing with regard to evaluating the plaintiff's medical status. The mere introduction of counsel in the examining room would inject a partisan element to it and thrust the adversary process into the physician's examining room. Courts should divest the examination as far as possible from any adversary character to accomplish that goal. Fortunately, this Ohio court refused to be a 'test case' for the plaintiff's attorney.

*Sam, a shareholder, and Beau, an associate, work in our Akron, Ohio, office and can be reached respectively at 330.255.0037 or sgcasolari@mdwcg.com and 330.734.6608 or bdhollowell@mdwcg.com.

Defense Digest, Vol. 17, No. 2, June 2012