N.Y. Comp. Codes R. & Regs. tit. 22 § 202.17

Current through Register Vol. 46, No. 45, November 2, 2024

Section 202.17 - 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 five 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 medical provider 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 techniciansreports 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;

(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 and 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) of this section. 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 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, 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.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 202.17