Plaintiff Ann McInroy sued Village Supermarket, Inc. for injuries from a slip and fall in its supermarket. Defense counsel scheduled an exam with an IME doctor to examine the plaintiff for her claimed injuries. After 2 missed appointments, the IME doctor sent defense counsel a bill for $375, representing the missed appointment fee for these two no show appointments. In the published Law Division decision of McInroy v. Village Supermarket, Inc., 2016 N.J. Super. LEXIS 164 (Law Div. Aug. 26, 2016)(approved for publication Feb. 14, 2017), Judge Savio ruled that this fee must be paid by plaintiff.
In this case of first impression, Judge Savio was asked to rule on a motion brought by defense counsel seeking an order compelling reimbursement of a missed appointment fee charged by a physician to perform an IME. He noted that the court rules do not provide the court with express authorization to compel the payment of missed appointment fees.
However, failure to appear for a properly noticed IME is a discovery violation. Under Rule 4:19, a defendant is entitled to an order compelling the IME to take place. Because the failure to appear for an IME is a discovery violation, it is within the court’s discretion to impose a sanction that will erase the prejudice to the non-delinquent party.
Plaintiff was unable to establish that she missed the appointments for any reason that should not have been foreseen. She failed to notify the doctor either time that she would not be able to appear. Defense counsel’s notice made it clear that if the appointment was not kept and not cancelled within 14 days before the scheduled appointment, a missed appointment fee of $375 would be charged.
The court was unsympathetic to the plaintiff’s argument that it would be a hardship to require a person whose sole source of income was Social Security Disability to pay the fee. Judge Savio found it was plaintiff’s sole fault in missing the exam and she should not be excused from paying the fee due to her financial circumstances.
It was reasonable for the doctor to charge the fee because he set aside time to meet the plaintiff and conduct the exam. That was time that could have produced other revenue for him. Because the defendant had no control over whether the plaintiff appeared for the IME, the court determined that it would be a just and reasonable discovery sanction to require the plaintiff to pay the missed appointment fee.
While this case is only a Law Division case, it is a published case. Thus, it can be cited for precedent in moving to compel the payment of a missed appointment fee. To ensure reimbursement, defense counsel should be certain to (1) provide 45 day notice of the exam as required under Rule 4:19 and (2) clearly state the IME doctor’s policy concerning cancellations and the amount charged for a missed appointment.
