Nicholas Hurzeler Authors Expert Analysis for Law360 on Seeking Presurgery Exams in Personal Injury Suits

New York, N.Y. (August 10, 2021) - New York Partner Nicholas P. Hurzeler recently authored an Expert Analysis article for Law360, titled "Seeking Presurgery Exams In NY Personal Injury Suit Defense," which discusses the often contentious issue in personal injury cases of whether the defense is able to obtain an independent medical examination, or IME, prior to the plaintiff undergoing surgery. The article provides a guide to presurgery IMEs, including a summary of the current state of the law and suggested tips on common points of contention.

As Mr. Hurzeler notes, in New York, the law on this topic is unsettled as the Appellate Division has not weighed in yet, so litigants must look to lower court decision and relevant statutes. The governing statute, Civil Practice Law and Rules (CPLR) section 3121, grants defendants the right to notice an IME for any medical claims in controversy. However, the statute is silent as to whether the defendant can demand an examination prior to surgery and is also vague on timing.

Mr. Hurzeler then reviews several lower court decisions on this issue, which indicate that CPLR sections 3101(a) and 3121 arguably favor presurgery IMEs and favor a defendant's right to a presurgery IME under certain circumstances. Following this review of the case law, Mr. Hurzeler concludes that "defendants in New York can plausibly argue that a consensus has emerged from the foregoing lower court decisions: Spoliation may occur from surgery, therefore defendants are, at least under certain circumstances, entitled to a presurgery IME, as well as spoliation relief if their demand is ignored."

Mr. Hurzeler then lists several rules that emerge from this case law, which defendants should keep in mind, including proving that the plaintiff's surgery is, or was, not urgent or immediately necessary, and submitting evidence that the request for a presurgery IME was timely demanded. The article then provides detailed steps for meeting this burden of proof.

Mr. Hurzeler ends the article by noting that it is unlikely the Appellate Division will rule that defendants are always entitled to a presurgery IME, but "one can expect that most likely, the Appellate Division will agree with the consensus that has emerged in the lower courts, and hold that defendants are entitled to a presurgery IME under certain circumstances."

Mr. Hurzeler is a vice chair of Lewis Brisbois' Appellate Practice. He focuses much of his practice on briefing and arguing appeals in the First and Second Departments of New York’s Appellate Divisions, with a strong track record of success. In addition to his appellate work, Mr. Hurzeler also handles extensive motion practice for a variety of general liability matters.

Read the full Expert Analysis article on Law360 (subscription required) or view a PDF version here.