Waiver of the Defense IME: No Interpreter, No Exam — De Sanchez v Trevz Trucking

Key Takeaways

• The First Department held defendants waived their right to a neurological IME by failing to provide an interpreter, even though the plaintiff appeared twice for the scheduled exam.
• The logistical burden of conducting a defense medical exam — including interpreters — falls on the defendant, not the plaintiff.
• Compliance conference deadlines have teeth: blowing an extended IME deadline is a waiver, reviewed only for abuse of discretion.
• The waiver analysis in litigation IMEs differs from no-fault IME no-shows, where the claimant’s failure to appear breaches a condition precedent to coverage.

Independent Medical Examinations (IMEs) are a critical component of no-fault insurance claims, allowing insurance companies to have their own medical experts evaluate claimants. However, insurance carriers and their attorneys must follow proper procedures and meet court-imposed deadlines to preserve their examination rights. When they fail to do so, courts may find that these rights have been waived.

The case of De Sanchez v Trevz Trucking LLC demonstrates how procedural failures can cost defendants their ability to conduct additional medical examinations. This decision highlights the importance of proper coordination between attorneys, medical experts, and interpreters when scheduling IMEs, particularly in cases involving non-English speaking plaintiffs.

The Decision: Waiver of IME Rights

Jason Tenenbaum’s Analysis:

De Sanchez v Trevz Trucking LLC, 2015 NY Slip Op 00622 (1st Dept. 2015)

“Under the circumstances, including that defendants’ orthopedic expert addressed all of plaintiff’s claimed injuries in his report and examination, and the fact that plaintiff appeared twice for the scheduled examination but the defendants’ expert refused to conduct the exam due to defendants’ failure to have an interpreter present, the court providently exercised its discretion in determining that defendants waived their right to conduct a neurological examination by failing to make arrangements [*2]necessary to perform the exam within the extended deadline set by the compliance conference order”

The Legal Framework: Defense Medical Exams in NY Litigation

In a New York personal injury action, a defendant’s right to a physical examination of the plaintiff flows from CPLR 3121, which permits an examination whenever the plaintiff’s physical or mental condition is in controversy. The exam is a disclosure device, and like all disclosure it is managed by the court through preliminary and compliance conference orders that fix deadlines for designating examining physicians and completing the exams.

Two principles do the work in De Sanchez. First, disclosure deadlines are enforceable: a party that fails to complete its examination within the time set by a conference order — here, an extended deadline — risks a finding of waiver. Second, the trial court’s management of disclosure is reviewed deferentially. The First Department did not ask whether it would have found waiver in the first instance; it asked whether Supreme Court “providently exercised its discretion.” That framing makes these rulings very hard to undo on appeal.

Note what made the waiver finding comfortable for the court: the defendants had already obtained a full orthopedic examination whose report “addressed all of plaintiff’s claimed injuries.” The waiver of the neurological exam therefore did not leave the defense without medical proof — a fact that softens any prejudice argument.

Litigation IMEs vs. No-Fault IMEs

Practitioners should keep the two IME regimes separate. In first-party no-fault claims, the IME is a creature of the regulations (11 NYCRR 65), and a claimant’s failure to appear for properly scheduled exams breaches a condition precedent to coverage — the focus is on the claimant’s conduct and on the carrier’s proof of proper scheduling and mailing. In bodily injury litigation, by contrast, the IME is a discovery device under the CPLR, and the focus is on the defendant’s diligence in arranging and completing the exam within court-ordered deadlines. De Sanchez sits on the litigation side of that line: the plaintiff did everything required of her — she appeared twice — and the exam failed only because the defense did not supply the interpreter its own expert needed.

The common thread between the regimes is accountability for logistics. Just as a no-fault carrier must prove its scheduling letters were properly and timely mailed, a litigation defendant must deliver every component necessary for the exam to proceed — room, physician, and interpreter included.

Why This Matters for Defendants and Carriers

A waived neurological exam means the defense will try the neurological injury claims without its own examining neurologist. The defense may still cross-examine plaintiff’s experts and rely on the plaintiff’s records, but it loses the most persuasive piece of threshold and damages proof: a defense physician who examined the plaintiff and found nothing. In a case with claimed neurological injuries, that is a self-inflicted wound.

For plaintiffs’ counsel, De Sanchez is a reminder to document every appearance. A client who shows up — twice — and is turned away builds the record that wins the waiver motion.

Practice Pointers

• Confirm logistics in writing before the exam date: physician availability, interpreter language and dialect, and who is paying for the interpreter. The defense’s expert refusing to proceed is chargeable to the defense.
• Calendar conference-order deadlines as hard dates, and move for an extension before the deadline lapses if the exam cannot be completed. Asking for forgiveness after an extended deadline has already been blown is exactly what failed here.
• Plaintiffs: create a paper trail of each appearance (sign-in confirmations, correspondence) and move promptly to strike the exam from the discovery schedule once the deadline passes.
• Scope your experts deliberately. Because the orthopedist’s report covered all claimed injuries, the court saw little prejudice in cutting off the neurologist. A defense that splits injuries across multiple examiners should complete the most critical exam first.

Frequently Asked Questions

Can a defendant lose the right to an IME in New York?

Yes. The IME in litigation is a disclosure device governed by court-ordered deadlines. If the defendant fails to complete the exam within the time set by a preliminary or compliance conference order — including any extensions — the court may find the right waived, and appellate courts review that ruling only for abuse of discretion.

Who is responsible for providing an interpreter at a defense medical exam?

The party that demanded the examination — the defendant. In De Sanchez, the defense expert refused to examine a plaintiff without an interpreter, and the failure to arrange one was charged to the defendants, resulting in waiver of the neurological exam.

Is a litigation IME the same as a no-fault IME?

No. A no-fault IME arises under the no-fault regulations (11 NYCRR 65), and the claimant’s failure to attend breaches a condition precedent to coverage. A litigation IME arises under CPLR 3121 as discovery in a lawsuit, and the burden of timely arranging and completing it rests on the defense.

Related Resources

• IME no-shows in New York no-fault insurance cases — cluster hub
• Unsure
• IME issues
• Another IME no show from the App. Term First Dept
• IME letters do not need to be sent to the provider
• Browse the firm’s Legal Encyclopedia for foundational NY litigation doctrine
• Personal Injury | No-Fault Defense