Earlier this year, a widely used New York City defense orthopedist was sanctioned for perjuring the length of his examination of a particular plaintiff. See transcript. The perjury was discovered (and proven) because the plaintiff had secretly videotaped the IME, and demonstrated that the purported 20 minute IME had taken only 1 minute, 56 seconds.
Recently, members of both the plaintiff’s and defense bar have offered their opinions, addressing the legal and ethical issues involved in the secret videotaping of IME’s. CPLR Section 3121 allows defendants to notice plaintiffs for IME’s, but requires “special circumstances” (i.e., comatose plaintiff unable to testify about the exam) to order the videotaping of an IME. Absent such special circumstances, however, noticed recording of IME’s is prohibited. CPLR 3121 does not reference the secretive, unnoticed recording of an IME by a plaintiff. To the plaintiff’s bar, secretive IME videotaping operates as a type of “reverse-surveillance,” in which the plaintiff films the defense witness without his or her knowledge. The question, then, is whether the secret videotaping of an IME is (and should be) prohibited.
In 2003, the New York Bar Association offered its formal opinion (http://www.nycbar.org/ethics/ethics-opinions-local/2003-opinions/818-undisclosed-taping-of-conversations-by-lawyers-) that the secret videotaping of a conversation by an attorney, although legal, is unethical. The opinion noted that “no societal good is furthered by allowing attorneys to engage in a routine practice of secretly recording their conversations with others, and there is considerable potential for societal harm.”
The argument could be made (and we suspect, will be made by the plaintiff’s bar) that secret IME recording achieves the “societal good” by exposing cursory IME’s, which in turn, would result in more thorough, accurate exams. To that end, secretive IME recording could become “the routine practice of every single IME in every single personal injury action,” especially if a given plaintiff honestly believes he is preventing potential perjury by recording the IME. No Court has specifically ruled on this yet, but IME physicians would be well advised to assume they are being recorded by copycat plaintiffs in the near future, looking to assist their cases.
Special thanks to Brian Gibbons for his contribution.