Wednesday, March 23, 2016

Proper Parameters for Neuropsychological IME Addressed by Pennsylvania Superior Court

In its recent decision in the case of Shearer v. Hafer, No. 665 MDA 2015 (Pa. Super. March 9, 2016 Panella, J. Ott, J., and Jenkins, J.) (Op. by Panella, J.), the Pennsylvania Superior Court affirmed a trial court’s granting of a Defendant’s Motion for a Protective Order prohibiting the presence of third party observers during the standardized test portion of a neuropsychological evaluation.  

According to the Opinion, this matter arose out of a motor vehicle accident.   Among the injuries claimed by the Plaintiff was cognitive harm allegedly triggered by the accident.   The Plaintiff treated with a neuropsychologist and, during that treatment, the Plaintiff’s treating neuropsychologist employed standardized testing procedures that were conducted without the presence of the Plaintiff’s attorney or any other third party.  

During the course of the litigation, the defense hired a doctor to complete an independent neuropsychological examination.   Plaintiff’s counsel demanded to be present during all components of the neuropsychological examination.   The IME doctor objected to this request, including the Plaintiff’s counsel’s request to audio tape the testing evaluation.   The IME doctor pointed to an official statement of the National Academy of Neuropsychology as indicating that third party presence and/or audio taping during testing may represent a threat to the validity and reliability of the test data.   The IME doctor indicated that he would allow the Plaintiff’s attorney to be present during the interview portion of the examination.  However, the IME doctor would not permit either the presence of the Plaintiff’s counsel and the audio taping during the standardize test phase of the neuropsychological evaluation.

This proposed compromise by the IME doctor was not acceptable to Plaintiff’s counsel.  

The issue then came before the trial court, which entered an Order granting the Defendant’s request for protective order.  That order stated that, although Plaintiff’s counsel could be present during the preliminary interview phase of the neuropsychological examination, no individual was allowed in the evaluation room with the Plaintiff and the IME doctor during the phase of the evaluation that involves standardize testing.   The order further provided that no recording device would be permitted in the evaluation room.  

The Superior Court noted that there was no Pennsylvania appellate court decision directly on point that addressed a litigant’s right to counsel during a psychological examination.   As noted, on appeal, the Pennsylvania Superior Court ruled that, pursuant to Pa. R.C.P. 4012, the trial court had the discretion to enter the order at issue.  The court also found support for the trial court’s decision under Pa. R.C.P. 4010, pertaining to Physical and Mental Examination of Person.  

The Superior Court also noted that, although there was “no case law [that] address of the application of Rule 4012 to Rule 4010,” the court noted that an explanatory commenting 1978 amendment to Rule 4012 stressed that the amendment provides a comprehensive Rule which covers all depositions and all discovery.   Accordingly, the court ruled that it appeared that the legislature intended that Rule 4012 would empower the trial court with discretion to issue protective orders in various discovery procedures, including, specifically, the power to limit the number of individuals present at an independent medical or psychological examination.  

The Superior Court went on to note that Rule 4012 did not empower the trial court to issue protective orders carte blanche.  Rather, the moving party still had the burden of showing “good cause” for the issuance of a protective order.   The court noted that the good cause standard “strikes an appropriate balance between competing interests, including a litigant’s privacy interest (however they be defined)…. and the court’s obligation to administer justice efficiently and prevent abuse of the discovery process.”   See Op. at 11 [citation omitted].  

Here, the Superior Court found that the Defendants had established good cause for the trial court’s issuance of the protective order.  In the end, the Superior Court found that the trial court’s decision represented a fair and thoughtful balance of both the patient’s interests and the presence of counsel during a neuropsychological examination and the court’s obligation to administer justice efficiently and to prevent abuse of the discovery process.   See Op. 12.   As such, the trial court’s order was affirmed as the Superior Court found no abuse of the trial court’s discretion in this regard. 

Anyone desiring a copy of this decision may click this LINK.

Additional Commentary: For one of the first decisions on this same issue with the same result (which decision actually predates and is cited by the trial court in its decision in Shearer), see Lackwanna County Judge Carmen D. Minora’s Opinion in the case of Marion v. Lukaitis in this Tort Talk post HERE.

UPDATE:  This decision was later vacated by the Pennsylvania Supreme Court who ruled that the Superior Court erred in considering the appeal in the first place as the trial court's order was not an appealable order as of right under Pa.R.A.P. 313 where the trial court's order only met one of the three prongs of the collateral order doctrine. 

To view this decision by the Pennsylvania Supreme Court, click HERE.  The Concurring Opinion by Justice Wecht, and the Dissenting Opinion by Justice Mundy are not Linked here.

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