Third Parties at Court-Ordered Psychological Evaluations

When a patient or his loved ones allege tortious conduct on the part of a healthcare provider, physical health questions must generally be answered. In addition, mental health may also be thrown into question when, for example, damages are sought for emotional distress. Thus, defendant medical providers may find it necessary to seek help from the courts to secure an unbiased psychological analysis of the plaintiff's condition. This can prompt anxiety all around, with litigants and their attorneys worrying that improper questions will be asked in the examination room, or that the examiner may be biased.

To guard against these problems, litigants may want their attorneys, or another third party, such as their own expert medical professional, to be present in the examination room. The opposing party and/or the examining doctor may object to this suggestion. What can litigants, their attorneys, and their medical examiners expect from the courts when conflicts over third-party presence during a court-ordered psychiatric examination arise?

Supreme Court Criminal Case Acts As Springboard

A U.S. Supreme Court holding from 1967 makes it clear that, in criminal matters, defendants who are required to undergo medical examinations at a “critical stage” of the proceedings have a constitutional right to the presence of their attorneys. United States v. Wade, 388 U.S. 218 (1967) (counsel constitutionally permitted to attend psychological examination of defendant asserting insanity defense.). State courts then followed and interpreted Wade, extending its teachings to civil matters.

One State's Experience

Let us take the example of New York to illustrate some of the different ways courts have dealt with the presence of third parties at court-ordered psychological examinations. As the rules on this question are generally applied in the same way whether the case involves a personal injury action or a parent's fight for custodial rights, we look at cases covering several legal issues.

New York's highest court, the Court of Appeals, followed Wade in 1971 when it held in Lee v. County Court, 27 NY2d 432 (1971), that criminal defendants are entitled to the presence of counsel during critical phases of criminal proceedings. Yet, that court also held that the attorney's presence should be unobtrusive: The lawyer was allowed to be present only in order to prepare to elicit testimony on direct- or cross-examination, but was not permitted to make objections or advise the defendant not to answer questions.

In civil matters, more often than not, New York courts have also allowed attorneys to accompany their clients during medical examinations. The Appellate Division, Fourth Department, did so in Jakubowski v. Lengen, 86 AD2d 398 (1982). There, the court reasoned that the relative dearth of prior case law on the subject of attorney presence at client medical examinations could be explained by the fact that such attorney attendance in the medical examination room had gone largely unchallenged in New York up to that point. The Fourth Department noted in that personal injury action that “[n]either CPLR 3121 [physical or mental examination] nor the Uniform Calendar and Practice Rules of the Fourth Department [22 NYCRR 1024.25 (exchange of medical reports)] provide for an attorney's presence at physical examinations and, more importantly, they do not provide for his exclusion.” Still, the Fourth Department found no constitutional right to such accompaniment in civil matters, noting only that this norm had become the “practice” of New York courts.

In 1983, the question arose in a case in which the State of New York sought termination of parental rights. Matter of Alexander L., 60 NY2d 329 (1983). The psychological evaluator attempted to refuse the parent's attorney's request to sit in with his client during an evaluation because the evaluator's employer, the Bureau of Mental Health Services, maintained a blanket policy against third-party presence during examinations. The Court of Appeals, like the Supreme Court in Wade, first asked whether the examination constituted a “critical phase” in the proceedings, because Section 262 of New York's Family Court Act guarantees parents in termination proceedings the right to assistance of counsel during such critical phases. Determining that the psychological examination in this civil action was a critical phase, the court concluded the parent was entitled to the presence of counsel during the psychological examination.

The rationale in the above cases and their progeny is that the party being examined has a justifiable interest in having his or her attorney present in order to prevent the examiner from asking misleading questions, and/or to allow the examinee's attorney to gather fodder for cross-examination. In the years since these cases were decided, New York courts have largely continued to hold that parties in civil matters have the right to have their own attorneys present at court-ordered physical or psychological examinations if they so choose; any objector bears the burden of showing the court why the attorney's presence should not be permitted.

Next month, we will look at how a New York trial court recently expressed a desire to reject much of that state's accumulated wisdom on this issue, significantly relying on federal and sister-state precedent to urge a shift of the burden of persuasion from the opponent of attorney presence in the examination room to the proponent seeking attorney assistance during a court-ordered a psychological exam.

Janice G. Inman is Editor-in-Chief of this newsletter.

When a patient or his loved ones allege tortious conduct on the part of a healthcare provider, physical health questions must generally be answered. In addition, mental health may also be thrown into question when, for example, damages are sought for emotional distress. Thus, defendant medical providers may find it necessary to seek help from the courts to secure an unbiased psychological analysis of the plaintiff's condition. This can prompt anxiety all around, with litigants and their attorneys worrying that improper questions will be asked in the examination room, or that the examiner may be biased.

To guard against these problems, litigants may want their attorneys, or another third party, such as their own expert medical professional, to be present in the examination room. The opposing party and/or the examining doctor may object to this suggestion. What can litigants, their attorneys, and their medical examiners expect from the courts when conflicts over third-party presence during a court-ordered psychiatric examination arise?

Supreme Court Criminal Case Acts As Springboard

A U.S. Supreme Court holding from 1967 makes it clear that, in criminal matters, defendants who are required to undergo medical examinations at a “critical stage” of the proceedings have a constitutional right to the presence of their attorneys. United States v. Wade , 388 U.S. 218 (1967) (counsel constitutionally permitted to attend psychological examination of defendant asserting insanity defense.). State courts then followed and interpreted Wade, extending its teachings to civil matters.

One State's Experience

Let us take the example of New York to illustrate some of the different ways courts have dealt with the presence of third parties at court-ordered psychological examinations. As the rules on this question are generally applied in the same way whether the case involves a personal injury action or a parent's fight for custodial rights, we look at cases covering several legal issues.

New York's highest court, the Court of Appeals, followed Wade in 1971 when it held in Lee v. County Court , 27 NY2d 432 (1971), that criminal defendants are entitled to the presence of counsel during critical phases of criminal proceedings. Yet, that court also held that the attorney's presence should be unobtrusive: The lawyer was allowed to be present only in order to prepare to elicit testimony on direct- or cross-examination, but was not permitted to make objections or advise the defendant not to answer questions.

In civil matters, more often than not, New York courts have also allowed attorneys to accompany their clients during medical examinations. The Appellate Division, Fourth Department, did so in Jakubowski v. Lengen , 86 AD2d 398 (1982). There, the court reasoned that the relative dearth of prior case law on the subject of attorney presence at client medical examinations could be explained by the fact that such attorney attendance in the medical examination room had gone largely unchallenged in New York up to that point. The Fourth Department noted in that personal injury action that “[n]either CPLR 3121 [physical or mental examination] nor the Uniform Calendar and Practice Rules of the Fourth Department [22 NYCRR 1024.25 (exchange of medical reports)] provide for an attorney's presence at physical examinations and, more importantly, they do not provide for his exclusion.” Still, the Fourth Department found no constitutional right to such accompaniment in civil matters, noting only that this norm had become the “practice” of New York courts.

In 1983, the question arose in a case in which the State of New York sought termination of parental rights. Matter of Alexander L., 60 NY2d 329 (1983). The psychological evaluator attempted to refuse the parent's attorney's request to sit in with his client during an evaluation because the evaluator's employer, the Bureau of Mental Health Services, maintained a blanket policy against third-party presence during examinations. The Court of Appeals, like the Supreme Court in Wade, first asked whether the examination constituted a “critical phase” in the proceedings, because Section 262 of New York's Family Court Act guarantees parents in termination proceedings the right to assistance of counsel during such critical phases. Determining that the psychological examination in this civil action was a critical phase, the court concluded the parent was entitled to the presence of counsel during the psychological examination.

The rationale in the above cases and their progeny is that the party being examined has a justifiable interest in having his or her attorney present in order to prevent the examiner from asking misleading questions, and/or to allow the examinee's attorney to gather fodder for cross-examination. In the years since these cases were decided, New York courts have largely continued to hold that parties in civil matters have the right to have their own attorneys present at court-ordered physical or psychological examinations if they so choose; any objector bears the burden of showing the court why the attorney's presence should not be permitted.

Next month, we will look at how a New York trial court recently expressed a desire to reject much of that state's accumulated wisdom on this issue, significantly relying on federal and sister-state precedent to urge a shift of the burden of persuasion from the opponent of attorney presence in the examination room to the proponent seeking attorney assistance during a court-ordered a psychological exam.

Janice G. Inman is Editor-in-Chief of this newsletter.