Physical Examination – Exchange of Medical Reports

Hamilton v Miller,

23 N.Y.3d 592, 992 N.Y.S.2d 190 [2014]

Disclosure rules in the CPLR and the Uniform Rules for the Trial Courts require disclosure of medical reports accompanying defense physical examinations. (CPLR 3121, 22 NYCRR 202.17) Plaintiffs sometimes balk at the production of reports, claiming that they have not yet retained physicians to testify at trial, and therefore have no reports to produce. Defendants, of course, respond that they cannot reasonably be required to retain examining physicians if they don’t know what they are supposed to look for. The Court of Appeals here considered this problem.

At first blush, the decision favors the plaintiffs’ argument. Closer examination shows that the Court’s interpretation of the rules still places a substantial burden on plaintiffs. The limits of this burden remain to be worked out.

Before the Court were two lead-paint-poisoning cases, and the question in each was whether the plaintiffs could be compelled to produce medical reports detailing each injury claimed by the plaintiffs and causally relating them to exposure to lead-based paint. The Court of Appeals held that it was an abuse of discretion to compel the plaintiff to produce such reports.

The facts in the two cases were similar. The plaintiffs in these cases, each now apparently an adult, each claimed to have sustained numerous injuries in childhood from ingesting lead-based paint in apartments rented to their families by the defendants. In one case (Hamilton v Miller) the plaintiff alleged 58 distinct injuries, including physical, psychological, psychiatric and developmental issues. In the second case (Giles v Yi), plaintiff’s bill of particulars listed 35 injuries, including physical, neurological and psychological issues. In each case, the defendants sought the reports of treating or examining physicians prior to conducting physical examinations. In each, the plaintiff provided medical and other records demonstrating lead poisoning problems from childhood, and problems in school, but no medical reports. In each the records did not demonstrate the numerous injuries claimed, and did not connect the school problems to lead poisoning.

In each case, Supreme Court directed the plaintiff to produce medical reports detailing the diagnoses claimed, causally relating the injuries to the exposure to lead-based paint. The Appellate Division affirmed in each case.

In the Court of Appeals, the plaintiffs contended that the only reports they were required to disclose were those from treating or examining physicians who had actually rendered a report. They were not, they contended, required to create reports to document their injuries. The Court agreed only to the extent that the plaintiffs were not required to hire an examining physician for the sole purpose of creating a report for litigation. The Court felt this to be “prohibitively expensive” for some plaintiffs.

On the other hand, the Court disagreed with the proposition that the plaintiffs only needed to disclose reports that already existed. The rule does require disclosure of reports from treating or examining physicians, whether or not the physicians have previously generated a report. It is plaintiffs’ responsibility to procure the reports from the treating or examining physicians, and to ensure that the reports comply with the rules. If for any reason that is not possible, plaintiffs would have to move for relief from compliance with the rule.

The reports are not required to causally relate each injury to the occurrence (in these cases, to the lead-paint exposure), and the trial courts exceeded their authority by directing that they do so. 22 NYCRR 202.17 requires reports which recite the injuries and conditions to be proven at trial, including description, diagnosis and prognosis. Causal connection is a matter for expert disclosure.

The problem with the Court’s language is that an injured person frequently has more than one treating physician. Especially in a hospital setting, many physicians may have taken part in the treatment, some without ever establishing a personal relationship with the plaintiff. Can it really be a plaintiff’s responsibility to procure a report from each of them? That cost would be even more prohibitive than the retention of an examining physician for the litigation.