Given the high “abuse of discretion” standard of review, any time a discovery ruling is altered or reversed by New York’s Appellate Division, the legal community must take note. Such a decision has the potential to affect choices practitioners make at each stage of litigation.

The First Department provides a recent example of this in Laura Pettinato et. al. v. EQR-Rivertower, LLC, et. al., which exemplifies the broad scope of discovery, especially related to Independent Medical Examinations (“IMEs”). It is well established that if a plaintiff puts their physical or mental condition in controversy, a defendant is entitled to an IME. What remains a topic for debate is the scope of such IME. In Pettinato, the First Department held that the Supreme Court erred in limiting the plaintiff’s IME to a basic gynecological examination. Instead, the Court reasoned, the defendants were entitled to a more extensive pelvic examination as well, in light of the plaintiff’s claimed injuries.

The plaintiff alleged she slipped and fell on a shower rack when exiting a shower, causing serious and permanent injuries to her genital area, including a vulvar laceration, tenderness and swelling of the labia, pelvic pain, pudendal neuralgia and dyspareunia. The defendants contested both the extent and cause of the claimed injuries.

After the plaintiff refused to remove her clothes at her IME, the defendants moved to compel a full gynecological examination, including a pelvic examination. In support of their motion, the defendants included an affidavit from the IME doctor explaining the necessity of the examination based on the alleged injuries. The plaintiff opposed the motion, submitting affidavits from her treating physician, who explained the pelvic examination was not only unnecessary, but would exacerbate her claimed PTSD from the incident. Further, she explained a pelvic exam was not necessary because the plaintiff’s primary complaint was neuropathic pain, surface pain and lack of flexibility.

Supreme Court granted the motion to compel but denied the request to conduct a pelvic exam. The Court reasoned this struck a balance between the need for an IME and the invasive and potentially harmful pelvic exam.

First Department Finds Need for IME as Disclosure Device Outweighs Patient’s Discomfort

Reviewing Supreme Court’s decision, the First Department acknowledged the need to balance the plaintiff’s desire to be examined safely and free from pain against the defendant’s need to determine facts. The Court stressed the requirement of the party seeking to compel the IME to demonstrate the “medical importance and safety of the particular procedure” and explain the relevance and need for the information to be learned from the procedure. An overriding consideration is the general rule a plaintiff should not be forced to undergo an exam that endangers their health, is invasive or may cause pain.

The First Department found the defendants’ medical expert provided the necessary evidence showing the full gynecologic exam (including the pelvic exam) was (1) material and necessary, (2) a routine procedure and (3) presented no harmful effects to the plaintiff. In addition, there was no evidence of an alternative or less invasive procedure to obtain the same information as the pelvic exam. Thus, the benefit of the pelvic exam as a disclosure device outweighed the plaintiff’s claimed discomfort.

Notably, the First Department explicitly rejected any claims of PTSD arising from the pelvic exam, as the plaintiff failed to support this claim with an affidavit from a mental health professional or any medical evidence from her treating physician. With respect to the plaintiff’s claim the procedure was unsafe, the Court noted she underwent a pelvic exam from her treating physician without any reported adverse effects, her treating physician described the exam as routine practice, and, moreover, it was undisputed the procedure was safe.

However, the Court did concede a pelvic exam may be “embarrassing and even humiliating,” and directed the pelvic exam be performed by a female doctor.

Dissenting Opinion

One justice dissented from the majority’s opinion and focused primarily on the invasive nature of a pelvic exam and what was characterized as the majority substituting its judgment for that of Supreme Court. The dissent also argued there was a lack of evidence offered by the defendants as to what information the pelvic exam could provide six years after the accident that could not be learned from a radiology or other imaging study, and even as to what information the defendants could hope to learn from the pelvic exam. Finally, the dissent was critical of the majority’s lack of deference to the plaintiff’s claimed PTSD.

This decision lays groundwork for defendants to combat claims the scope of an IME should be limited. In particular, it serves as an example for future litigation of the rare instance when the trial court abuses its discretion and limits an IME. While the precise impact of this decision will take time to develop, there is no doubt it will provide strong support for defendants to contest any attempts by plaintiffs to limit the scope of an IME, notwithstanding the strong dissent.