(Shoprite of Hammonton) Appellate division decided February 14, 2017.
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
The sole issue in this Law Division decision is the defense attorney’s request that the plaintiff pay for a missed independent medical exam appointment fee of $375.00.
In this case the plaintiff alleges she slipped and fell on a dangerous condition in the defendant’s store. She makes a claim for personal injuries and alleges they are related to the fall. As a result, the defense attorney scheduled a defense medical exam, routinely called an “independent medical exam” or IME, with a doctor in Linwood New Jersey.
The first appointment was scheduled in May 2016. Plaintiff was unable to go because she did not have a vehicle and a medical exam for an unrelated medical claim for which she was treating. Plaintiff provided the court with proof of medical records of a COPD attack on that very same day.
Another exam was scheduled one month later and proper notice was provided to the plaintiff. There was no proof provided to the court that the second exam, schedule for July 12, 2016 was inconvenient or plaintiff did not have sufficient time to make arrangements to attend said exam. Plaintiff failed to attend the second exam and the defense attorney issued a bill for $375.00 for the missed appointment fee. Defense counsel then sent a letter demanding payment for the appointment and advised that the fee must be paid with regard to the second appointment. Plaintiff missed a third appointment and made various excuses for her failure to attend however provided no proof of same. The court looked to New Jersey Court Rule 4:19 mandating 45 days advance notice to schedule any Defense Medical Exam.
This judge then, after reviewing the absence of any caselaw on point, found he has the inherent discretionary power to impose sanctions for failure of a party to the litigation to make discovery so long as they are just and not unreasonable given that particular circumstances. The court found the defendant is routinely entitled to an order compelling the IME to take place and for an order dismissing plaintiffs complaint; relief not requested in this case. The court also found it is within its discretion to order the non-delinquent party to be reimbursed for the missed appointment fee so long as same was just and not unreasonable. The court found the plaintiff’s excuses for the two missed appointments reasonable however the third was unacceptable. The court believed this was the case even though the plaintiff’s sole source of income of Social Security disability. The court finds a defendant did comply with the rules of court regarding the notice and the reasonable nature of the fee. The court found that the alternative sanction, dismissing plaintiffs complaint, would be unacceptable and the imposition of the fee just and reasonable in this particular set of facts and circumstances.
The bigger issue in this case is the plaintiff’s attempt to avoid going to the defense IME “doctors’ appointments” and not being cooperative with her attorney. When you make a claim for personal injuries the defense is allowed to send you to a doctor to examine you and medical claims you were making against their insured/client. You are bringing your medical condition and all prior medical conditions and physical claims in to play.
You must go to these exams and there is no way out of it. If you do not go, obviously in this case this judge will sanction you for your failure to cooperate. Other judges would merely dismiss the complaint and your personal injury claim would be in the trash can. Your attorney cannot do much about this issue other than prepare you for the medical examination.
You have to cooperate with him and comply with the Rules of Court. Just because you are injured and or you think you are entitled to money, doesn’t mean it happens with the snap of a finger. You have to cooperate with the rules and the framework established and set up around making these claims. If you do not care about your case, why should your attorney and if you’re not going to cooperate with your attorney why should he make your case more important than other cases in his office????
You have to give 100% as well. This plaintiff got off easy in my opinion.
If she failed to attend three defense medical examination, the defense attorney should’ve filed a motion to bar her claim. Obviously he did not do to his relationship with the plaintiffs attorney. The defense attorney only filed for a motion to be reimbursed the cost of the missed medical exam.
Jeffrey S. Hark, Esq.