The ability to examine a claimant is often an important part of assessing bodily injury claims. Nevada’s 2023 legislative session created new barriers to obtaining these examinations, whether based on court rules or contractual requirements. The changes were contained in AB 244 and will eventually be included in NRS Chapter 629. These changes, advocated for by the Nevada Justice Association, are intended to significantly disrupt the ability of claims organizations to gather information and evaluate claims. Significant litigation is anticipated to determine whether these new requirements are enforceable at all and, if so, in what contexts. This uncertainty and the accompanying disruption could last several years until Nevada’s appellate courts resolve these disputes.
How did we get here and what can be done about it?
Why Defendants Care about Examinations
In the litigated context, courts have explained why Rule 35 examinations are important. “In the absence of Rule 35, the Defendants’ challenge to the physical or mental condition of the Plaintiff could only be advanced through the questioning of his treating or consulting health care professionals."1 Rule 35’s drafters apparently concluded “under these circumstances, the crucible of cross-examination was an insufficient test of the truth and, accordingly, independent examinations, which could be undertaken only upon the agreement of the parties or at the discretion of the Court, were prescribed."2 Rule 35 is not perfect, but “the approach adopted by Rule 35 is a considered attempt to fairly place the parties on a somewhat equal footing."3 This logic applies in other contexts, too; direct access to information is just as vital in assessing an uninsured motorist (UM) claim as it is a third-party claim, or any other claim involving bodily injury.
Claimants allege that investigatory tools such as Rule 35 are “maligned, but Court-sanctioned means by which the Defendants can select a ‘hired gun’ who can be expected to submit a conclusory report that fully absolves the Defendants from any responsibility for the Plaintiff’s psychological impairment if, indeed, any impairment should be found."4 This generalized, conspiratorial criticism is no more valid than “the oft-repeated apprehensions of the Defense Bar that health care professionals unnecessarily prolong a plaintiff’s treatment for personal self-gain."5
Regardless of conspiracy theories, the system doesn’t work if one side has access to information that the other side cannot access on equal terms. Rule 35’s drafters recognized that and attempted to reach a balance.
AB 244’s Most Significant Effects
AB 244 attempts to define the terms and conditions for any mental or physical examination under Nevada law, whether in a court proceeding or other scenario. AB 244’s potentially most significant effects are discussed below.
AB 244 applies beyond court proceedings.
AB 244 section 1 expressly states it applies to “a person compelled to submit to a mental or physical examination pursuant to a court order, a contractual obligation or any other type of obligation….” This scope is as broad as possible. The only areas to which it does not apply are juvenile justice, criminal cases, state management of mental health, and protecting children from abuse and neglect.6 The new statute now conceivably applies to any insurance policy that contains an examination requirement. It may also apply to workers’ compensation proceedings, pre-hiring physical assessments and any number of other scenarios.
AB 244 allows the examinee to bring an observer.
AB 244 subsection 1(b) states the examinee has the right to “[h]ave any observer of choice present throughout the examination, including, without limitation, the person’s attorney, provider of health care or any other person hired by or on behalf of the person.” By contrast, for litigated claims NRCP 35(a)(4) allows the examinee to request an observer, but not an absolute right to have one present: “The party against whom an examination is sought may request as a condition of the examination to have an observer present at the examination. When making the request, the party must identify the observer and state his or her relationship to the party being examined."7 Further, NRCP 35(a)(4) expressly bars certain types of observers that AB 244 allows: “The observer may not be the party’s attorney or anyone employed by the party or the party’s attorney.”
Notably, the party hiring the examiner is excluded from the examination completely. Nor is the examiner allowed to have anyone present as a check on the examinee’s entourage.
The examinee may unilaterally record the examination.
Subsection 1(e) then gives the examinee the right to “[a]fter providing notice to the examiner, make an audio, stenographic or video recording of the examination or appoint an observer to make such a recording.” For litigated claims, this directly conflicts with NRCP 35(a)(3): “On request of a party or the examiner, the court may, for good cause shown, require as a condition of the examination that the examination be audio recorded.” However, AB 244 does not require a claimant to record interactions with treating physicians.
The examinee may sue everyone involved.
AB 244 subsection 4 is particularly aggressive, allowing the examinee to sue anyone who purportedly violates AB 244:
4. A person compelled to submit to a mental or physical examination may bring an action in a court of competent jurisdiction for a violation of this section to seek any or all of the following relief, if notice of the alleged violation is provided to the person who allegedly violated this section not later than seven days before the action is commenced:
(a) Attorney’s fees
(b) Actual damages or a fine of $1,500, whichever is greater
(c) Injunctive relief
(d) Protective relief or
(e) An order prohibiting the use of any information gathered at the examination in any judicial or administrative proceeding.
Comments were submitted against AB 244 that highlight the problems that might be obvious to some. The American Property Casualty Insurance Association (APCIA) noted subsection 4 is not limited to just examiners. Instead, subsection 4 allows a suit against “the person who allegedly violated this section….” The APCIA wrote “the defendants in such related lawsuits will undoubtably [sic] be defense medical experts, defense attorneys, and/or others on the defense side.” The National Association of Mutual Insurance Companies expressed similar concerns: “We are also concerned the proposed legislation could expose medical experts to a private right of action; thereby, discouraging them from performing IMEs [independent medical examinations] in the first-place.”
There could be multiple arguments against this new liability, such as Nevada’s litigation privilege. However, testing the application of that privilege will likely require litigation.
AB 244 seems likely to unleash waves of litigation. One wave will be in litigated claims where AB 244 directly conflicts with Rule 35. Another wave could be in claims where no litigation has yet occurred, but claimants want to apply AB 244 rather than Rule 35. A third wave could be in the multitudes of other daily scenarios where employees or employers have “mental or physical examinations,” such as in workers’ compensation. The phrase “mental or physical examinations” is so broad that some might argue AB 244 includes drug and alcohol screens, physical capacity examinations, contested professional licensure applications and multitudes of other scenarios.
Ultimately, AB 244 seems to accomplish its goal quite well. It has created numerous barriers that deny defendants access to the same information that claimants have. Those handling claims where examinations are necessary will likely face difficulty in evaluating and resolving those claims due to the barriers created by AB 244.
1 Tomlin v. Holecek, 150 F.R.D. 628, 632 (D. Minn. 1993).
6 AB 244 subsection 5, stating AB 244’s terms “do not apply to a person compelled to submit to a mental or physical examination pursuant to titles 5, 14, 15 and 39 of NRS and chapter 432B of NRS.”
7 NRCP 35(a)(4).