Justice Alice Schlesinger
Plaintiff Chong, now resided in Seoul and was denied a visa to return to the United States for her deposition and medical examination in this medical malpractice action against New York Downtown Hospital and Dr. Ho. She argued defendants departed from accepted standards of gynecological care, causing her continuing pain, scarring and compromised function that was permanent. Chong moved for permission to testify at her deposition by video teleconference, and to undergo her independent medical examination (IME) in Seoul. Defendants opposed noting Chong’s inability to return to the US was a hardship of her own making. The court noted depositions of non-resident material witnesses have become relatively common, thus defendants’ preference for a face to face deposition did not rise to the level of prejudice. Yet, defendants had a right to select their own physician to conduct the IME, thus, the court ruled once such physician s/he would be transported to Seoul at the sole expense of Chong. The court concluded the reason for Chong’s failure to return to the US was unclear, but should not result in her forfeiting her rights to compensation if she can prove negligent conduct by defendants.