State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The issue in this motion is easily stated but less easily resolved. Does 22 NYCRR 202.17 effectively change the medical records disclosure obligation to require narrative reports from all examining and treating doctors?

This position is urged by defendants and is just as strenuously opposed by the plaintiff. The defendants cite in support a Fourth Department case from 2000, Davidson v Steer/Peanut Gallery (277 AD2d 965), which refers to an obligation on the part of plaintiffs to provide reports as well as medical records. In connection with this statement the court cited 22 NYCRR 202.17 (h) and two cases: Kelly v Tarnowski (213 AD2d 1054) and Pierson v Younish (122 AD2d 202).

Both of those cases, however, dealt with disclosure of medical reports for an impending independent medical examination, and that indeed seems to be the situation contemplated by 202.17 as a whole. As they apparently did in the Davidson case, defendants here rely on 202.17 (h), a subsection which does not specifically refer to examinations. But is this subsection meant as a separate requirement, or is it to be read in pari materia? This can only be answered after a close look at the regulation itself.

The title of the regulation is general in import, and it contains the briefest of introductory sections:

Except where the court otherwise directs, in all actions in which recovery is sought for personal injuries, disability or death, physical examinations and the exchange of medical information shall be governed by the provisions hereinafter set forth.

(1) copies of the medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians' reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis. Medical reports may consist of completed medical provider, workers' compensation, or insurance forms that provide the information required by this paragraph.

These reports are in addition to medical records.

Subsections (d) and (e) deal with wrongful death actions, where there is obviously no opportunity for an examination. In these cases reports are to be served along with the bill of particulars by the party seeking to recover. All others then have 45 days to serve their own reports. Significantly, subsection (e) provides that

Parties relying solely on hospital records may so certify in lieu of serving medical providers' reports.

Unless an order to the contrary is made, or unless the judge presiding at the trial in the interests of justice and upon a showing of good cause shall hold otherwise, the party seeking to recover damages shall be precluded at the trial from offering in evidence any part of the hospital records and all other records, including autopsy or postmortem records, X-ray reports or reports of other technicians, not made available pursuant to this rule, and no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule.

Yet the regulation sets service dates for the reports only with respect to a medical examination. There must first be a notice fixing the time and place of the examination; only then does the obligation arise.

Interpreting the regulation as the defendants wish would render the 20-day time limit meaningless. If narrative reports were to be served at some indeterminate time before any party decides to have an examination, there would then be no point in asking parties to supply these reports twenty days before the examination itself. The only consistent interpretation is that the setting of an examination triggers the requirement for preparation and service of the reports. The regulation cannot be construed as requiring reports to assist in deciding if an IME is to be had.

This interpretation is bolstered by the different procedure in wrongful death cases. There the time limit is established with respect to the pleadings themselves, and the obligation may be satisfied by delivery of medical records alone, if the party certifies its intention to do so (22 NYCRR 202.17 [e], cit. supra.) It would appear, then, that these reports are intended primarily for the use of the examining physician, not the attorneys; if there is to be no examination, the requirement may be dispensed with at any party's option.

The regulations' scheme clearly applies to two different sets of circumstances: in personal injury cases where an IME is scheduled or noticed and in wrongful death cases. Only in the former are reports required. It does not seem to encompass a third alternative, the personal injury case in which no examination is sought.

That is the case here, and the court finds itself in a quandary. Assuming, for the moment, that reports are required here. When should they be served? The regulations are silent on this. The subsections referring to an IME are clearly irrelevant. But the other sections are hardly more helpful. If the matter were to be assimilated to the case of a wrongful death action, the defendants would both win and lose; the plaintiff would have been under an obligation to supply the reports at the time of the bill of particulars, but could easily certify his intention of relying on the medical records already supplied.

Of the two possibilities the second appears to be the less confusing. The court therefore decides that in a personal injury case such as this one, where neither a demand for an examination nor a notice of availability has been served, the plaintiff may rely on medical records alone. Should any party request an IME, or the plaintiff make herself available for one, narrative reports must be prepared and served 20 days or more before the scheduled date. The court does not believe that Davidson  precludes this holding, but to the extent that it can be construed as holding otherwise, this court would decline to follow it.

Applying this rule to the present case, the court notes that there has been no request for an examination as of the time of the motion. The plaintiff has filed a note of issue, which puts an end to discovery. The court recognizes that this case has been pending for a substantial length of time, and that it would have been appropriate for the defendants to request an examination long before. Nonetheless, because their delay was based on a reasonable interpretation of an extremely difficult regulation, the court would not want their interests prejudiced. The motion is granted solely insofar as it seeks to strike the note of issue. Counsel for Dr. Silver may prepare an order allowing all parties 30 days to serve a notice of examination. If no party does so, the note of issue may be refiled and the plaintiff may rely on the medical records alone. If an examination is scheduled, this case will then fall within the clear ambit of 22 NYCRR 202.17, and narrative reports must then be served in a timely fashion.

DATED: Rochester, New York

May 27, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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