Accident Victim Not Required To Submit To Second Defense Orthopedic Examination, Where Doctor Gave Her A Complete First Examination

Court: Supreme Court, Kings County, New York

Case: Joan Fougner v. Royal Oak, Benjamin D. Shih and Good Shot!, Inc.

Date: Aug. 28, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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Facts: Plaintiff was injured on August 6, 2010 when she fell. The court's decision doesn't tell how or why she fell.

In April, 2011 she had arthroscopic surgery to her right shoulder.

There was a discovery order that required her to attend a defense medical examination, which she underwent on January 12, 2012. Defendants' orthopedist, Dr. Zaretsky, issued a report noting that Fougner complained of shoulder pain so he couldn't properly examine her. To better assess Fougner's shoulder, Dr. Zaretsky wrote that she should have another (second) examination in four months.

Defense attorneys served plaintiff's lawyers with Dr. Zaretsky's letter. They notified plaintiffs' attorneys that they intended to have plaintiff examined again in the future -- not something plaintiff's lawyers agreed to. Her lawyers objected to this, even though defense counsel had not scheduled that second examination.

Plaintiff's lawyers certified this case as ready to got to trial, which is known as "placing it on the trial calendar." The trial calendar is just a list. Your case goes to the bottom, and when it reached the top it's your turn for a trial. This is the procedure in accident and all other types of cases.

The defense now decides it wants another physical examination of this accident victim.

The Law: A defendant that wishes to obtain additional disclosure from the plaintiff may ask the court (make a motion) to remove the case from the court's trial calendar. This motion must be made within twenty says after the case has been placed on the trial calendar. After that twenty-day period, a defendant that wishes to remove the case from the trial calendar and obtain more discovery is given the additional burden of demonstrating "good cause" for being late: such as unanticipated or unusual circumstances.

Case Holding: Defense orthopedist conducted a thorough examination and missed nothing. There is no reason to order her to submit to another physical examination to remove this case from the court's trial calendar.

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