N.Y. Comp. Codes R. & Regs. Tit. 22 § 210.13 - Exchange of medical reports in personal injury and wrongful death actions
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:
(a) At any time after joinder of issue
and service of a bill of particulars, the party to be examined or any other
party may serve on all other parties a notice fixing the time and place of
examination. Unless otherwise stipulated, the examination shall be held not
less than 30 nor more than 60 days after service of the notice. If served by
any party other than the party to be examined, the notice shall name the
examining medical provider or providers. If the notice is served by the party
to be examined, the examining parties shall, within 10 days of receipt thereof,
submit to the party to be examined the name of the medical providers who will
conduct the examination. Any party may move to modify or vacate the notice
fixing the time and place of examination or the notice naming the examining
medical providers, within 10 days of the receipt thereof, on the grounds that
the time or place fixed or the physician named is objectionable, or that the
nature of the action is such that the interests of justice will not be served
by an examination, exchange of medical reports or delivery of
authorizations.
(b) At
least 20 days before the date of such examination, or on such other date as the
court may direct, the party to be examined shall serve upon and deliver to all
other parties the following, which may be used by the examining medical
provider:
(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 sustained, 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; and
(2) duly executed and acknowledged
written authorizations permitting all parties to obtain and make copies of all
hospital records and such other records, including X-ray and technicians'
reports, as may be referred to and identified in the reports of those medical
providers who have treated or examined the party seeking recovery.
(c) Copies of the
reports of the medical providers making examinations pursuant to this section
shall be served on all other parties within 45 days after completion of the
examination. These shall comply with the requirements of paragraph (b)(1) of
this section.
(d) In
actions where the cause of death is in issue, each party shall serve upon all
other parties copies of the reports of all treating or examining medical
providers whose testimony will be offered at the trial, complying with the
requirements of paragraph (b)(1) of this section, and the party seeking to
recover shall deliver to all other parties authorizations to examine and obtain
copies of all hospital records, autopsy or post-mortem reports, and such other
records as provided in paragraph (b)(2). Copies of these reports and the
required authorizations shall be served and delivered with the bill of
particulars by the party seeking to recover. All other parties shall serve
copies of the reports of their medical providers within 45 days thereafter. In
any case where the interests of justice will not be promoted by service of such
reports and delivery of such authorizations, an order dispensing with either or
both may be obtained.
(e) Parties relying solely on hospital
records may so certify in lieu of serving medical providers' reports.
(f) No case otherwise eligible
to be noticed for trial may be noticed unless there has been compliance with
this rule, or an order dispensing with compliance or extending the time
therefor has been obtained; or, where the party to be examined was served a
notice as provided in subdivision (a) of this section, and the party so served
has not responded thereto.
(g) In the event that the party examined
intends at the trial to offer evidence of further or additional injuries or
conditions, nonexistent or not known to exist at the time of service of the
original medical reports, such party shall, within 30 days after the discovery
thereof, and not later than 30 days before trial, serve upon all parties a
supplemental medical report complying with the requirements of paragraph (b)(1)
of this section, and shall specify a time not more than 10 days thereafter and
a place at which a further examination may be had. Further authorizations to
examine and make copies of additional hospital records, other records, X-ray or
other technicians' reports as provided in paragraph (b)(2) of this section must
also be delivered with the medical reports. Copies of the reports of the
examining medical providers, complying with the requirements of subdivision (c)
of this section, shall be served within 10 days after completion of such
further examination. If any party desires at the trial to offer the testimony
of additional treating or examining medical providers, other than whose medical
reports have been previously exchanged, the medical reports of such medical
providers, complying with the requirements of paragraph (b)(1) of this section
shall be served upon all parties of at least 30 days before trial.
(h) 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 post-mortem 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.
(i) Orders transferring cases
pending in other courts which are subject to the provisions of this section,
whether or not such cases are consolidated with cases pending in the court to
which transferred, shall contain such provisions as are required to bring the
transferred cases into compliance with this rule.
(j) Any party may move to compel
compliance or to be relieved from compliance with this rule or any provision
thereof, but motions directed to the sufficiency of medical reports must be
made within 20 days of receipt of such reports. All motions under this rule may
be made on affidavits of attorneys, shall be made on notice, returnable at the
appropriate motion part and shall be granted or denied on such terms as to
costs, calendar position and dates of compliance with any provision of this
rule as the court in its discretion shall direct.
(k) Where an examination is
conducted on consent prior to the institution of an action, the party to be
examined shall deliver the documents specified in paragraphs (b)(1) and (2) of
this section, and the report of the examining medical provider shall be
delivered as provided in subdivision (c) of this section. In that event,
examination after institution of the action may be waived. The waiver, which
shall recite that medical reports have been exchanged and that all parties
waive further physical examination, shall be filed with the note of issue. This
shall not be a bar, however, to proceeding under subdivision (g) of this
section in a proper case.
Notes
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