Do PI plaintiffs have to preserve their bodies for an IME?

Spoliation of evidence occurs when a party to a case fails to preserve evidence or intentionally destroys evidence.  Oftentimes, the spoliation results in a party being deprived of vital evidence.  In a personal injury case, the issue usually arises in the context of the destruction or repair of property or items that are important to a case. For example, the destruction of a vehicle in a case alleging defective brakes, or the paving of a walkway in a trip and fall case, may be deemed spoliation of evidence.

What if the object that is the subject of a spoliation claim is the plaintiff’s own body. Does a bodily injury need to be preserved as evidence?

A New York appeals court recently addressed the issue.  On December 7, 2021, the Appellate Division, First Department, threw out a lower court’s decision sanctioning a plaintiff who had surgery to address an injury in a case in which she was asserting that the injury was caused by the defendant’s negligence.  The plaintiff did not appear for an independent medical examination scheduled by the defense attorney in March 2019, which was then rescheduled to May 2019, but when the plaintiff appeared at the rescheduled examination, she disclosed the spine surgery she had on month earlier, in April.  The lower court found that undergoing the surgery prior to appearing for the examination was spoliation of evidence, and sanctioned the plaintiff.

The Appellate Division overturned the decision, and found that spoliation applies only to a party’s destruction of inanimate objects, not one’s body, and that a finding otherwise would be counter to our belief in personal liberty and control over our bodies.

The decision in Gillian v. UNI Holdings, LLC is available here.

AcroDocz retrieves, reviews and summarizes medical records and bills for law firms and their experts.  The chronologies created by AcroDocz contain a concise, factual, and informative summary of a client’s treatment, and can be utilized at any stage of a case. To speak with a representative or view a sample chronology please contact AcroDocz at or (786) 633-3100.

Request for Information

    Share This

    Share this post with your friends!