THE observer effect in physics states that the act of observation changes what is being observed. Many neuro-psychologists suggest that the same phenomenon occurs when a third-party observer or recording device placed in the examination room in an independent neuropsychological examination. The New Jersey Supreme Court recently weighed in on this "Schrodinger's Cat" of personal injury litigation. Its reasoning is instructive in any jurisdiction where third-party observation and recording of medical examinations is contentious. (1)
Many firms representing plaintiffs routinely insist that a paralegal or nurse, either employed directly by the firm or retained as a vendor supplying such services, be present in the examination room during an independent medical examination demanded by defendants. Plaintiffs offer many reasons for recording. Most commonly, counsel will say the observer is there to ensure accuracy and prevent over-reach by the medical expert retained by defendant. This argument appears where the plaintiff is allegedly cognitively impaired, a minor, or is not an English-language speaker and therefore may not be able to communicate with the examining doctor. Unfortunately, it is not uncommon for the observer to interject himself into the proceeding, such as by objecting to the plaintiff completing intake forms or even verbally answering the doctor's questions. Even the circumspect observer, however, will be attentively noting the duration of the examination, what was and what was not examined or tested, and other aspects of the examination that could be used for cross-examination of the expert at trial.
The defense usually objects that the observers interfere with the examination. Even if the observer restricts himself to observation, some people do not perform well under scrutiny, a particular problem in neuro-psychological testing where the results are only valid if the subject is using best efforts under optimal circumstances. Neuro-psychological testing also presents a different issue. Beyond the issue of whether the presence of the observer distracts or otherwise influences the test, professional guidelines also require that the test be administered under conditions that protect testing materials from dissemination. "Test security is a critical issue, as it addresses the prevention of unnecessary exposure of psychometric materials that can result in diminishing a test's ability to accurately distinguish between normal and abnormal performance." (2)
Against this background, on June 15, 2023, the New Jersey Supreme Court addressed this issue in DiFiore v. Pezic.
I. DiFiore v. Pezic
The court in DiFiore consolidated three cases on appeal, each presenting issues of third-party observation of an independent medical examination. The first case was presented by a woman in her seventies who claimed to have suffered a traumatic brain injury ("TBI") as the result of a motor vehicle accident. The TBI allegedly caused amnesia and expressive aphasia--an inability to express thoughts in speech or to understand what is said to her. Counsel argued that plaintiff needed both her "medical care proxy", who assisted her in activities of daily life, and a nurse consultant as observers of the examination, since plaintiff "would have no memory of the [examination] and would be unable to assist her attorneys in preparing for trial." (3)
The second case involved a middle-aged man who was blinded in one eye in a construction accident and alleged major depression and post-traumatic stress disorder as a result. The psychological overlay purportedly caused impaired concentration and gaps in short-term memory. Compounding his difficulties, plaintiff was a native Spanish-speaker not fluent in English. Plaintiff's counsel argued that plaintiff needed a third-party observer in his neuro-psychological evaluation, since he would struggle in identifying discrepancies between his examination and the report of the defense medical expert.
The third case involved a Spanish-speaker over seventy years of age who alleged only orthopedic injuries sustained in an accident but insisted on an observer due to a language barrier with the examining physician.
The court held that court rules compelled a defense medical examination different from an examination of a plaintiff by plaintiff's own doctor or a doctor of plaintiff's choosing. Further, "A [defense medical examination] is also unique in our adversarial system. It is the only instance in which a defense expert may conduct discovery on a plaintiff without plaintiff's counsel present." (4) Although ostensibly cloaked in objectivity, the examination is adversarial in the sense that the defense has retained its physician to further the defense's litigation interests. In weighing these arguments, the New Jersey Supreme Court established the following guidelines: (5)
1. Trial courts shall consider the presence of third-party observation on a case-by-case basis, "with no absolute prohibitions or entitlements."
2. Plaintiffs shall notify defendants of their intention to introduce a third-party observer to the examination. If opposed, the parties must meet and confer to attempt to resolve any dispute. If an agreement cannot be reached, the court places on defendant the burden of moving for a protective order or other relief.
3. Third-party observation can be by any one of a variety of means, ranging from the physical presence of an actual observer to audio recording to use of an unattended fixed camera.
4. Protective orders can be fashioned to protect proprietary information in copyrighted or other protected testing materials, restricting dissemination of materials beyond its use in the litigation.
5. Reasonable conditions can be placed on third-party observation so as not to interfere with the examination.
6. If an interviewee needs a foreign language or sign language interpreter and the parties cannot reach an agreement, all parties or the court, shall select a neutral interpreter.
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