The Lawyer in the Examination Room

Last month, we began discussion of the question: “When the court orders a litigant to undergo a psychological examination, is it proper, or permissible, for that party's attorney to attend the session?” The U.S. Supreme Court made clear in United States v. Wade, 388 U.S. 218 (1967), that criminal defendants had a right to have their attorneys present during medical exams, but the requirements in civil actions are far less clear. Understandably, then, although the arguments pro and con are pretty much the same no matter what the jurisdiction, state and federal courts have come to differing conclusions.

New York Court Ponders the Question

Justice Richard J. Dollinger, of Supreme Court, Monroe County, is hearing the case of M.A.M. v. M.R.M. In this case, parents embroiled in a custody dispute were ordered to undergo psychological examinations. The wife was willing to submit to examination by the court's chosen professional without conditions, but the husband alleged bias. His attorney, who felt that he should be present during his client's examination, asked the evaluator to permit him to attend, to which the psychologist answered, “It is the longstanding policy of this office not to allow third parties to be present for any part of the evaluations for reasons that can be explained if necessary.” Unsatisfied, the husband brought the issue before the court.

The psychological evaluator submitted an affidavit to the court laying out his objections to the presence of attorneys at sessions with the parents. It stated, “The husband's attorney made it clear that he would seek to prevent his client from providing spontaneous responses to open-ended or specific questions asked during the course of the interview, responses and information which are critical to an understanding of the individual.” The evaluator went on to argue that answers given by examinees to interview questions were valuable not only as answers themselves, but as a means to allow critical observation of the interviewee's demeanor; this dynamic could be significantly influenced by the presence of a third party. The evaluator also submitted to the court several pieces of professional literature backing up his concerns. He informed the court that he would not allow the husband's attorney to sit in on his sessions.

Judge Dollinger determined that because the evaluator had previously conducted numerous psychological examinations in custody matters before him, and had testified as an expert in these matters previously, he should be deemed an expert on the issue of the impact of the presence of third parties during psychological evaluations. The husband provided no counter-expert.

New York State Precedent: Many Views

Justice Dollinger pointed out in M.A.M. v. M.R.M. that the Court of Appeals' decision in Matter of Alexander L. (60 NY2d 329 (1983)) did not state that all litigants in civil matters have a blanket right to have an attorney present during a psychological examination; only that they have that prerogative during “critical phases” of the proceedings. Even then, the “right” can be revoked if a justifiable reason for the exclusion of counsel were presented.

What constitutes a “critical phase”? Judge Dollinger looked for guidance to a 2009 decision issued by Supreme Court, New York County, in a neglect proceeding. In Administration of Children Services v. Y.B., 2009 NY Misc. Lexis 2560 (Sup. Ct., NY Cty. 2009), the court ordered the mother to undergo a mental health evaluation. The mother wanted her attorney to accompany her to her examination, but the court held that the pre-dispositional mental health evaluation was not a “critical stage” of the proceeding because it was “neither adversarial nor does it create a risk of substantial prejudice to Respondent.” This was because the evaluation's results would not be used as the exclusive basis for a decision, and the evaluation itself was not statutorily required but was simply being ordered as an “additional aid to the court.” Further, the court observed that the mother's “right to effective assistance of counsel remains fully protected ' because the report will be available to all counsel, the evaluator is subject to cross-examination and [the subject] may submit a contradictory psychiatric examination.”

A similar conclusion was reached in Gardner v. Niskayuna School District, 42 AD3d 633 (3d Dept. 2007), where the Appellate Division, Third Department, upheld a lower court's decision not to allow a third party (the examinee's husband) to accompany her to a court-ordered psychiatric examination, even though there were statutory grounds for permitting him to be there. The opposing party had successfully shown that the presence of the husband might compromise, or even invalidate, the results of the evaluation, which would have trampled on the opposing party's statutory right to conduct a medical examination. “In essence,” stated Judge Dollinger in analyzing Gardner, “even though a statutory 'right' had been violated when the observer was denied access, the court in Gardner v. Niskayuna School District held that subject had failed to produce evidence that her ability to prepare for the hearing, formulate a defense, or effectively cross-examine the evaluator was impaired by the exclusion. In this instance, the court held that the evidence from the examiner regarding the need to exclude the observer to protect the integrity of the examination was sufficient, and shifted to the subject the burden to show that the exclusion had compromised their right to a fair hearing.”

Another case cited in Justice Dollinger's decision, Mosca v. Explorer Charters Ltd., 194 Misc. 2d 360 (Sup. Ct. Kings Cty. 2002), points out the difference between a psychiatric and a physical medical exam, where “most, if not the entire diagnosis, is based upon the private conversation between the doctor and the patient.” In an orthopedic examination room, for instance, the physical exam can take place even if the players say nothing, or have differing desires as to the diagnosis. In a psychological examination room, however, the presence of a third party could stifle open and honest discourse, interfering with the purposes of the exam itself.

Summing up, the M.A.M. v. M.R.M. court concluded that New York authority on access to psychiatric examinations runs on several tracks: 1) “The In re Alexander L. track, which suggests that if the examination is at a critical stage, then counsel must be present”; 2) “The Jakubowski [Jakubowski v. Lengen, 86 AD2d 398 (1982)] track, which judicially codifies a practice that the attorney may be present unless the objecting party presents a sufficient justification to exclude counsel”; and, 3) “The emerging psychiatric track, established in Administration of Children Services v. Y.B. and its predecessors, which indicate that because of the unique nature of psychiatric examinations, the party seeking access must present a justification to attend.”

Checking in with Other Jurisdictions

Because these three cases and their ilk showed that New York lacks a definitive answer to the question of whether attorneys or other third parties should be allowed to be present during psychological examinations, the court next turned for guidance to federal case law and to precedent in sister states.

Judge Dollinger observed at the outset that the several states have come to no consensus on the subject. Some allow third-party access. See, e.g., Lagfeldt-Haaland v. Saupe Enterprise Inc., 768 P2d 1144 (Alaska 1989) (aligning Alaska with other jurisdictions that routinely allow third-party presence at medical exams); Broyles v. Reilly, 695 So2d 832 (Fla. 2d DCA. 1997) (attorney may attend examination where physician performing it fails to offer case-specific reason for exclusion). Others prohibit third parties in the examination room. See, e.g., Martens v. Industrial Commission of Arizona, 211 Ariz. 319 (Ariz. Ct.App. 2005) (attorney excluded from examination); Vinson v. Superior Court of Alameda County, 43 Cal3d 833 (Cal. 1987) (California rules do not give examinee right to attorney presence during examination); Hayes v. District Court City and County of Denver, 854 P2d 1240 (Colo. 1993). Still others came up with hybrid solutions, such as permitting audio recordings of medical examinations or allowing the attorney to be present, but prohibiting him from asking questions or objecting. (But see Metropolitan Property & Casualty Co. v. Overstreet, 103 SW3d 31, 39 (Sup. Ct. Ken. 2003) (prohibiting attorney presence, explaining, “A court order requiring the attorney to remain silent lessens the potential for disturbance, but the attorney's presence is then of doubtful utility to the examinee because an attorney may not act as a witness. ' Thus, an attorney could not dispute a perceived inaccuracy in the doctor's testimony without jeopardizing his representation of the examinee.”).)

Federal courts have come down firmly on the side of examiner/examinee privacy. Rule 35 of the Federal Rules of Civil Procedure governs psychological examinations. It is similar to the analogous New York statute, Civil Practice Law and Rules (CPLR) 3121, in that it is silent concerning the presence of counsel in the examination room. But federal courts have almost uniformly prohibited the presence of third parties at court-ordered psychiatric examinations. See, e.g., Mandujano v. Geithner, 2011 U.S. Dist LEXIS 27986 (ND CA 2011); Letcher v. Rapid City Regional Hosp. Inc., 2012 U.S. Dist LEXIS 46959 (WDSD 2010). Exceptions to this rule are made only when the party wishing to have his or her attorney present provides a compelling reason. DiBari v. Incaica Cia Armadora S.A., 126 FRD 12 (ED NY 1989). The DiBari court explained its reasons for this stance, declaring that Rule 35 examinations should be “divested of any adversary character” because of “the special nature of such an examination, which relies upon unimpeded one-on-one communication between doctor and patient.” So, in federal courts, the burden is on the proponent of third-party presence to show that the attorney's presence during the psychological examination is necessary.

Factors Weigh Against Lawyer Accompaniment

Justice Dollinger drew several lessons from his study of New York, federal and sister state cases. First, he worried that the presence of an attorney during a discussion between client and doctor could be distracting, whether any disruption caused was intentional or not; such interference could lead to the need to repeat the examination. However, if the attorney is excluded, he or she may obtain a copy of the examination report, talk to the examiner and cross-examine that professional where necessary. “When these real practical issues are analyzed,” stated Judge Dollinger, “the court leans in favor of denying access to any third-party, especially if the expert, who conducts the examination at the court's direction, strongly suggests that the presence of a third-party would impact the results of the examination.” (Note, however, that because there is not a true physician/patient relationship under these conditions, Judge Dollinger agreed with courts in other jurisdictions that when a psychological exam is court-ordered, “a psychologist does not have the right to dictate the terms and conditions under which an examination is held.”)

Having decided it would be better to lean more toward attorney exclusion because of the risks of tainting the examination, Judge Dollinger looked to the other arguments for and against such action in the case before him.

First, the court dismissed the father's assertion that his attorney should be present to help preserve his Fifth Amendment right to remain silent, as this right may generally be invoked only if the person being questioned is currently subject to criminal investigation. It can also come into play in certain civil matters, but only if there is imminent danger that the answers to the questions could lead to or be used to prosecute the speaker. This danger was not present in M.A.M. v. M.R.M., although the subjects the father wanted to avoid concerned marijuana use and an alleged history of drunken driving infractions.

Further, Judge Dollinger declined to accept the father's styling of a psychological exam as equivalent to a deposition because, during a psychological exam: 1) The evaluator does not place the witness under oath; 2) No transcript of the proceedings is made; 3) Only the evaluator and the examinee are involved, not the full retinue of characters usually present at depositions; 4) Questions need not be posed in any particular form; and 5) There are no applicable rules of relevance. Therefore, the judge did not agree with the father that the Uniform Rules for the Conduct of Depositions (22 NYCRR ' 221.2(i) & (iii)) should be applied to psychological exams.

The court next considered the risk that the attorney, if allowed to be present during the psychological exam, might have to testify as a witness for or against his own client. This prospect was one to be avoided, as the New York Code of Professional Responsibility requires attorneys in that position to withdraw from representation.

“In short,” stated the court, “there are two short term risks in allowing the attorney to observe: the danger that the attorney might, intentionally or inadvertently, interfere with the clinical process and the risk that he might be converted into a factual witness. Meanwhile, there are ample pre and post-examination protections for the husband. The court could approve a pre-examination stipulation to restrict inquires by the examiner into the husband's past. Husband's counsel can advise him about anticipated questions. The post-examination protections are ample as well: post-examination interviews with the client, production of the report in detail, use of other experts to rebut the examiner's conclusions and detailed cross-examination at trial.”

The M.A.M. v. M.R.M. court came to the ultimate conclusion that, in the situation before it, the father had no “right” to have his attorney present during his psychological examination. Thus, the court was compelled to ask if the wife and the evaluator had met the Jakubowski test by offering sufficient bases for excluding the husband's attorney from the exam; for the previously discussed reasons, the court found that they had.

Conclusion

Attorneys representing medical malpractice litigants must, of course, consult the law and precedent in their own jurisdictions because each state that has addressed the question of attorney presence in the medical examination room has gone through its own balancing act, some falling on the side of third-party exclusion and others tending to allow attorney presence in some form unless a compelling contrary argument is made.

Interestingly, after Judge Dollinger came to his conclusion in M.A.M. v. M.R.M., he went on to criticize the line of cases that have led to New York's presumption that a party may have his attorney present during a psychological examination unless the opposing party or examiner can offer enough justification for excluding him or her. The court opined that, as is the case in the federal court system, “the attorney should have the burden to show that his presence is necessary to protect some identifiable right or privilege of his client before he or she be permitted to attend.” So although the court was able to reach the outcome it desired by applying the rules dictated by New York precedent, it was not happy that those tests placed the burden on the opponent of attorney presence, rather than the proponent. However, Judge Dollinger was forced to concede that he did not “possess the power to erase these precedents and move New York in a different direction, however appropriate the court may deem it to be.”

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

Last month, we began discussion of the question: “When the court orders a litigant to undergo a psychological examination, is it proper, or permissible, for that party's attorney to attend the session?” The U.S. Supreme Court made clear in United States v. Wade , 388 U.S. 218 (1967), that criminal defendants had a right to have their attorneys present during medical exams, but the requirements in civil actions are far less clear. Understandably, then, although the arguments pro and con are pretty much the same no matter what the jurisdiction, state and federal courts have come to differing conclusions.

New York Court Ponders the Question

Justice Richard J. Dollinger, of Supreme Court, Monroe County, is hearing the case of M.A.M. v. M.R.M. In this case, parents embroiled in a custody dispute were ordered to undergo psychological examinations. The wife was willing to submit to examination by the court's chosen professional without conditions, but the husband alleged bias. His attorney, who felt that he should be present during his client's examination, asked the evaluator to permit him to attend, to which the psychologist answered, “It is the longstanding policy of this office not to allow third parties to be present for any part of the evaluations for reasons that can be explained if necessary.” Unsatisfied, the husband brought the issue before the court.

The psychological evaluator submitted an affidavit to the court laying out his objections to the presence of attorneys at sessions with the parents. It stated, “The husband's attorney made it clear that he would seek to prevent his client from providing spontaneous responses to open-ended or specific questions asked during the course of the interview, responses and information which are critical to an understanding of the individual.” The evaluator went on to argue that answers given by examinees to interview questions were valuable not only as answers themselves, but as a means to allow critical observation of the interviewee's demeanor; this dynamic could be significantly influenced by the presence of a third party. The evaluator also submitted to the court several pieces of professional literature backing up his concerns. He informed the court that he would not allow the husband's attorney to sit in on his sessions.

Judge Dollinger determined that because the evaluator had previously conducted numerous psychological examinations in custody matters before him, and had testified as an expert in these matters previously, he should be deemed an expert on the issue of the impact of the presence of third parties during psychological evaluations. The husband provided no counter-expert.

New York State Precedent: Many Views

Justice Dollinger pointed out in M.A.M. v. M.R.M. that the Court of Appeals' decision in Matter of Alexander L. (60 NY2d 329 (1983)) did not state that all litigants in civil matters have a blanket right to have an attorney present during a psychological examination; only that they have that prerogative during “critical phases” of the proceedings. Even then, the “right” can be revoked if a justifiable reason for the exclusion of counsel were presented.

What constitutes a “critical phase”? Judge Dollinger looked for guidance to a 2009 decision issued by Supreme Court, New York County, in a neglect proceeding. In Administration of Children Services v. Y.B., 2009 NY Misc. Lexis 2560 (Sup. Ct., NY Cty. 2009), the court ordered the mother to undergo a mental health evaluation. The mother wanted her attorney to accompany her to her examination, but the court held that the pre-dispositional mental health evaluation was not a “critical stage” of the proceeding because it was “neither adversarial nor does it create a risk of substantial prejudice to Respondent.” This was because the evaluation's results would not be used as the exclusive basis for a decision, and the evaluation itself was not statutorily required but was simply being ordered as an “additional aid to the court.” Further, the court observed that the mother's “right to effective assistance of counsel remains fully protected ' because the report will be available to all counsel, the evaluator is subject to cross-examination and [the subject] may submit a contradictory psychiatric examination.”

A similar conclusion was reached in Gardner v. Niskayuna School District , 42 AD3d 633 (3d Dept. 2007), where the Appellate Division, Third Department, upheld a lower court's decision not to allow a third party (the examinee's husband) to accompany her to a court-ordered psychiatric examination, even though there were statutory grounds for permitting him to be there. The opposing party had successfully shown that the presence of the husband might compromise, or even invalidate, the results of the evaluation, which would have trampled on the opposing party's statutory right to conduct a medical examination. “In essence,” stated Judge Dollinger in analyzing Gardner, “even though a statutory 'right' had been violated when the observer was denied access, the court in Gardner v. Niskayuna School District held that subject had failed to produce evidence that her ability to prepare for the hearing, formulate a defense, or effectively cross-examine the evaluator was impaired by the exclusion. In this instance, the court held that the evidence from the examiner regarding the need to exclude the observer to protect the integrity of the examination was sufficient, and shifted to the subject the burden to show that the exclusion had compromised their right to a fair hearing.”

Another case cited in Justice Dollinger's decision, Mosca v. Explorer Charters Ltd. , 194 Misc. 2d 360 (Sup. Ct. Kings Cty. 2002), points out the difference between a psychiatric and a physical medical exam, where “most, if not the entire diagnosis, is based upon the private conversation between the doctor and the patient.” In an orthopedic examination room, for instance, the physical exam can take place even if the players say nothing, or have differing desires as to the diagnosis. In a psychological examination room, however, the presence of a third party could stifle open and honest discourse, interfering with the purposes of the exam itself.

Summing up, the M.A.M. v. M.R.M. court concluded that New York authority on access to psychiatric examinations runs on several tracks: 1) “The In re Alexander L. track, which suggests that if the examination is at a critical stage, then counsel must be present”; 2) “The Jakubowski [ Jakubowski v. Lengen , 86 AD2d 398 (1982)] track, which judicially codifies a practice that the attorney may be present unless the objecting party presents a sufficient justification to exclude counsel”; and, 3) “The emerging psychiatric track, established in Administration of Children Services v. Y.B. and its predecessors, which indicate that because of the unique nature of psychiatric examinations, the party seeking access must present a justification to attend.”

Checking in with Other Jurisdictions

Because these three cases and their ilk showed that New York lacks a definitive answer to the question of whether attorneys or other third parties should be allowed to be present during psychological examinations, the court next turned for guidance to federal case law and to precedent in sister states.

Judge Dollinger observed at the outset that the several states have come to no consensus on the subject. Some allow third-party access. See, e.g., Lagfeldt-Haaland v. Saupe Enterprise Inc. , 768 P2d 1144 (Alaska 1989) (aligning Alaska with other jurisdictions that routinely allow third-party presence at medical exams); Broyles v. Reilly , 695 So2d 832 (Fla. 2d DCA. 1997) (attorney may attend examination where physician performing it fails to offer case-specific reason for exclusion). Others prohibit third parties in the examination room. See, e.g., Martens v. Industrial Commission of Arizona , 211 Ariz. 319 (Ariz. Ct.App. 2005) (attorney excluded from examination); Vinson v. Superior Court of Alameda County , 43 Cal3d 833 (Cal. 1987) (California rules do not give examinee right to attorney presence during examination); Hayes v. District Court City and County of Denver , 854 P2d 1240 (Colo. 1993). Still others came up with hybrid solutions, such as permitting audio recordings of medical examinations or allowing the attorney to be present, but prohibiting him from asking questions or objecting. ( But see Metropolitan Property & Casualty Co. v. Overstreet, 103 SW3d 31, 39 (Sup. Ct. Ken. 2003) (prohibiting attorney presence, explaining, “A court order requiring the attorney to remain silent lessens the potential for disturbance, but the attorney's presence is then of doubtful utility to the examinee because an attorney may not act as a witness. ' Thus, an attorney could not dispute a perceived inaccuracy in the doctor's testimony without jeopardizing his representation of the examinee.”).)

Federal courts have come down firmly on the side of examiner/examinee privacy. Rule 35 of the Federal Rules of Civil Procedure governs psychological examinations. It is similar to the analogous New York statute, Civil Practice Law and Rules (CPLR) 3121, in that it is silent concerning the presence of counsel in the examination room. But federal courts have almost uniformly prohibited the presence of third parties at court-ordered psychiatric examinations. See, e.g., Mandujano v. Geithner, 2011 U.S. Dist LEXIS 27986 (ND CA 2011); Letcher v. Rapid City Regional Hosp. Inc., 2012 U.S. Dist LEXIS 46959 (WDSD 2010). Exceptions to this rule are made only when the party wishing to have his or her attorney present provides a compelling reason. DiBari v. Incaica Cia Armadora S.A. , 126 FRD 12 (ED NY 1989). The DiBari court explained its reasons for this stance, declaring that Rule 35 examinations should be “divested of any adversary character” because of “the special nature of such an examination, which relies upon unimpeded one-on-one communication between doctor and patient.” So, in federal courts, the burden is on the proponent of third-party presence to show that the attorney's presence during the psychological examination is necessary.

Factors Weigh Against Lawyer Accompaniment

Justice Dollinger drew several lessons from his study of New York, federal and sister state cases. First, he worried that the presence of an attorney during a discussion between client and doctor could be distracting, whether any disruption caused was intentional or not; such interference could lead to the need to repeat the examination. However, if the attorney is excluded, he or she may obtain a copy of the examination report, talk to the examiner and cross-examine that professional where necessary. “When these real practical issues are analyzed,” stated Judge Dollinger, “the court leans in favor of denying access to any third-party, especially if the expert, who conducts the examination at the court's direction, strongly suggests that the presence of a third-party would impact the results of the examination.” (Note, however, that because there is not a true physician/patient relationship under these conditions, Judge Dollinger agreed with courts in other jurisdictions that when a psychological exam is court-ordered, “a psychologist does not have the right to dictate the terms and conditions under which an examination is held.”)

Having decided it would be better to lean more toward attorney exclusion because of the risks of tainting the examination, Judge Dollinger looked to the other arguments for and against such action in the case before him.

First, the court dismissed the father's assertion that his attorney should be present to help preserve his Fifth Amendment right to remain silent, as this right may generally be invoked only if the person being questioned is currently subject to criminal investigation. It can also come into play in certain civil matters, but only if there is imminent danger that the answers to the questions could lead to or be used to prosecute the speaker. This danger was not present in M.A.M. v. M.R.M., although the subjects the father wanted to avoid concerned marijuana use and an alleged history of drunken driving infractions.

Further, Judge Dollinger declined to accept the father's styling of a psychological exam as equivalent to a deposition because, during a psychological exam: 1) The evaluator does not place the witness under oath; 2) No transcript of the proceedings is made; 3) Only the evaluator and the examinee are involved, not the full retinue of characters usually present at depositions; 4) Questions need not be posed in any particular form; and 5) There are no applicable rules of relevance. Therefore, the judge did not agree with the father that the Uniform Rules for the Conduct of Depositions (22 NYCRR ' 221.2(i) & (iii)) should be applied to psychological exams.

The court next considered the risk that the attorney, if allowed to be present during the psychological exam, might have to testify as a witness for or against his own client. This prospect was one to be avoided, as the New York Code of Professional Responsibility requires attorneys in that position to withdraw from representation.

“In short,” stated the court, “there are two short term risks in allowing the attorney to observe: the danger that the attorney might, intentionally or inadvertently, interfere with the clinical process and the risk that he might be converted into a factual witness. Meanwhile, there are ample pre and post-examination protections for the husband. The court could approve a pre-examination stipulation to restrict inquires by the examiner into the husband's past. Husband's counsel can advise him about anticipated questions. The post-examination protections are ample as well: post-examination interviews with the client, production of the report in detail, use of other experts to rebut the examiner's conclusions and detailed cross-examination at trial.”

The M.A.M. v. M.R.M. court came to the ultimate conclusion that, in the situation before it, the father had no “right” to have his attorney present during his psychological examination. Thus, the court was compelled to ask if the wife and the evaluator had met the Jakubowski test by offering sufficient bases for excluding the husband's attorney from the exam; for the previously discussed reasons, the court found that they had.

Conclusion

Attorneys representing medical malpractice litigants must, of course, consult the law and precedent in their own jurisdictions because each state that has addressed the question of attorney presence in the medical examination room has gone through its own balancing act, some falling on the side of third-party exclusion and others tending to allow attorney presence in some form unless a compelling contrary argument is made.

Interestingly, after Judge Dollinger came to his conclusion in M.A.M. v. M.R.M., he went on to criticize the line of cases that have led to New York's presumption that a party may have his attorney present during a psychological examination unless the opposing party or examiner can offer enough justification for excluding him or her. The court opined that, as is the case in the federal court system, “the attorney should have the burden to show that his presence is necessary to protect some identifiable right or privilege of his client before he or she be permitted to attend.” So although the court was able to reach the outcome it desired by applying the rules dictated by New York precedent, it was not happy that those tests placed the burden on the opponent of attorney presence, rather than the proponent. However, Judge Dollinger was forced to concede that he did not “possess the power to erase these precedents and move New York in a different direction, however appropriate the court may deem it to be.”

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