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Entries in injury claims (3)

Tuesday
Nov252014

Personal Injury: The "Independent" (Defense) Medical Examination Required By Law

Injury Attorney Los AngelesPersonal Injury Attorney

by David B. Bobrosky

(818) 907-3254

 

This is part of a series of blogs that discusses what a client can expect during various stages of a personal injury case. This post addresses what happens when the defense has the Plaintiff examined by a doctor in what is incorrectly referred to as an “Independent Medical Examination.”

 

Any personal injury Defendant has a right to have a Plaintiff examined by a doctor of the Defendant’s choice. The law places two main conditions on the examination:  

  1. The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive; and

  2. The examination must be conducted within 75 miles of the Plaintiff’s residence.

Personal Injury Medical Exams

Whenever a Plaintiff claims continuing injuries, the Defendant will have the Plaintiff examined by the Defendant's doctor of choice.

The doctor will usually match the same type of doctor that the Plaintiff has been seeing to treat his or her injuries – if the Plaintiff has been seeing a neurosurgeon for example, the Defendant will usually require the Plaintiff to see their own neurosurgeon.

The Defendant may also ask the Court to have the Plaintiff examined by multiple doctors if the Plaintiff has multiple injuries that are being treated in different areas of medicine. Most of the time, the Courts will allow examinations by multiple physicians – especially if the Plaintiff will be calling multiple doctors at trial to testify.

 

A Defense (Not Independent) Medical Examination

This examination has often been referred to as an Independent Medical Examination (IME). However, there is nothing “independent” about it. The physician is not neutral.  S/He is hired and paid for by the defense – usually the insurance company.

The doctor examines the Plaintiff, writes a report and then testifies on behalf of the defense. Usually this is a doctor who has been hired by the insurance company many times, and is an advocate for the insurer. Many of them earn hundreds of thousand dollars to over a million dollars per year working for the defense and testifying against Plaintiffs.

This is usually much more money, for much less time, than the doctor makes in his or her main practice. That is why it is more accurately referred to as a “Defense Medical Examination.”

 

What To Do When the Defense Requires an IME

Insurance Medical ExamIf a Plaintiff's attorney receives a notice to have the Plaintiff examined, the first thing that the attorney will do is ensure the physician is of the same discipline of the doctor that has treated the Plaintiff. If the attorney believes that the examination is noticed properly and will proceed by law, the attorney should respond with a written notice with conditions of the examination.

If the examination is not properly noticed (too many examinations, not a correct medical discipline, too far from the Plaintiff's residence, etc.), an injury attorney can send a written objection. Separate conditions apply to mental examinations, which will be addressed in a future article.

 

Attending the Examination

The Plaintiff should never attend the examination alone.

Some attorneys attend the examination with the Plaintiff. Other attorneys send an “observer” with the Plaintiff – sometimes a nurse or someone else with medical training to record the type of tests performed by the insurance doctor. There are pros and cons to each.

The examination may be audio recorded by either the Plaintiff or the doctor. Whether it’s the attorney or an “observer”, it’s imperative that someone attends with the Plaintiff.

 

At the Defense Examination

The Plaintiff should never fill out any paperwork at the doctor’s office.

There is no requirement to do so, and will only be used against the Plaintiff. Despite the fact that it’s not required, almost every office will attempt to have the Plaintiff complete paperwork.

Either the doctor or a “historian” will take an oral history of the accident and injury. Some attorneys do not allow their clients to give any history whatsoever. Others allow a brief history regarding the specific injury or treatment—just enough to allow the doctor to perform an examination.

During the history and/or examination it is important to remember that no matter how charming the doctor may seem, s/he is an advocate for the defense – with financial incentive to downplay the seriousness of the Plaintiff's injury.

It should go without saying that if the Plaintiff answers questions, the Plaintiff must do so honestly.

The Plaintiff must always put forth 100 percent effort during the examination. S/he may be asked to perform certain physical tests, i.e. bending, squeezing, rotating joints, etc.  Besides it being dishonest not to participate to the best of injury victim's ability, the insurance doctors are trained to spot a lack of effort or attempts to exaggerate or fake pain.

 

Report and Record Review

The Plaintiff's attorney will demand a copy of any report generated by the Defense's doctor. This usually includes the main report of the examination, which should set forth the tests conducted during the examination and any opinions or conclusions reached by the doctor.

Many times, the insurance company will send medical records to the examining doctor to review. The doctor will then also produce an additional report called a Record Review.

In this Record Review, the doctor summarizes the records and comments regarding the treatment of the Plaintiff. It is extremely important to make sure the attorney for the Plaintiff obtains both the Report and the Record Review, as the doctor will often bury most of his/her critiques and important opinions in the Record Review.

Being adequately prepared for the Defense Medical Examination will lead to the Plaintiff’s attorney properly dealing with the Defense doctor at deposition and/or trial. Cross-examining a Defense Doctor will be addressed in a separate blog.

 

David B. Bobrosky is an experienced Personal Injury Attorney. Contact him via phone: (818) 907-3254 or by email: dbobrosky@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Aug232012

Insurance Companies Behaving Badly: The Progressive Fiasco

Personal Injury SettlementsInjury Attorney

 

(818) 907-3254
by David B. Bobrosky

 

Thanks to social media, the power is truly back with the people. 

It helped revive Betty White's career, thanks to a Facebook campaign by her fans. It got the Susan G. Komen Foundation to rethink its decision to cut funding for Planned Parenthood, and public outcry further prompted the resignation of five Foundation executives. Social media also sparked a movement to boycott Chick-fil-A, and then a counter-movement to support the chain, after the company president took a public stance for traditional marriage. 

 

Personal Injury Free ConsultationClick image to contact us for a free consultation.

Regardless of what side of these issues you fall, social media has proved to be powerful. Now, Progressive Insurance is the latest to be feeling the pain of public outcry in social networking forums. 

It started in 2010, when Progressive client Katilynn Fisher was killed in an automobile accident in Baltimore. Among other things, her insurance policy covered her for accidents with uninsured or underinsured drivers.

Nationwide Insurance covered the other driver, and promptly paid out its policy limits of $25,000 to Fisher's estate.

Under Fisher’s underinsured policy with Progressive, there was another $75,000 available to the estate.  A total of $100,000 certainly seems like nothing for the death of a loved one, but that’s all that was available.  To make matters worse, Progressive refused to pay out even the $75,000, claiming Fisher may have been at fault for the accident.

Apparently, in the State of Maryland, if your insurance company refuses to settle your underinsured motorist claim, you must prove your damages against the other driver first in court. In this case the other driver’s company had already paid its own policy limits.  Nevertheless, Progressive still fought the family. 

In California, it would be a little different.  After recovering the third party policy, an insured could demand arbitration against its own insurance company if it refused to pay on the underinsured policy.

Progressive refused to settle the matter for anything more than a third of the policy, and then set out to defend the other driver even though he appeared to be at fault.

This prompted Fisher's brother, Matt Fisher, to post a blog about the insurer on August 13th entitled My Sister Paid Progressive Insurance to Defend Her Killer in Court:

Here I address you, Prospective Progressive Insurance Customer: someday when you have your accident, I promise that there will be enough wiggle room for Progressive’s bottomless stack of in-house attorneys to make a court case out of it and to hammer at that court case until you or your surviving loved ones run out of money.... Which is what Progressive decided to do to my family. In hopes that a jury would hang or decide that the accident was her fault, they refused to pay the policy to my sister’s estate. 

Rather than accepting responsibility for its actions, Progressive posted a response to Matt Fisher’s blog.  Progressive stated:

            “Progressive did not serve as the attorney for the defendant.”

On August 14th, Fisher posted a response to a statement by the insurer.  Fisher pointed out that the Progressive attorney sat at counsel table during the trial, presented an opening statement, questioned the witnesses, and presented the closing argument.  As Fisher stated, he was “comfortable characterizing this as a legal defense.”

The posts earned the case some national media attention. Fisher was invited to appear on national television and Progressive's Facebook page saw an onslaught of negative commentary.

A circuit court in Maryland awarded $760,000 to the Fisher family. Progressive paid the $75,000 it owed to begin with, and then paid an additional undisclosed settlement for the way the company handled its own insured’s claims.

Had Progressive treated its insured fairly, it would merely have paid the $75,000, and saved the insured’s family additional grief. Instead, Progressive paid significantly more and put the family through additional anguish.

I’d like to think Progressive, and other insurers, have learned a lesson here…but we know they probably haven't. Insurance companies will continue to do whatever they can to pay out as little as they can on all claims.

David B. Bobrosky is a San Fernando Valley Personal Injury Attorney and avid safe driving proponent. Contact him via e-mail: dbobrosky@lewitthackman.com

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
May032012

Tort Reform – Caps on Damages Cause More Pain than Good

Personal Injury Attorney Los AngelesInjury Attorney San Fernando Valley 

 

by David B. Bobrosky
(818) 907-3254

 

Some states put “caps” on damages awarded by juries in tort, or personal injuries cases.

A “cap” is a law that puts an arbitrary ceiling on the amount of damages a judge or jury can award in a case, regardless of the facts or evidence presented in a specific case. The types and amounts of caps vary by state, and can be imposed on parts, or all aspects of an award--- including compensation for actual medical costs, loss of earnings, pain and suffering, and/or punitive damages.

 Personal Injury AttorneyCaps were recently in the news again because of the Virginia Tech shooting case. The Virginia Tort Claims Act caps jury awards at the maximum limits of a liability policy. This is why the parents of two students who were killed in the Virginia Tech shootings in 2007 may only be awarded $200,000, even though the jury who heard the case awarded $8 million to the two families.

 

Other Painful Outcomes in “Tort Reform”

 

In Nebraska, there is a total cap of $1.25 Million on all damages. This includes pain and suffering, as well as money for past and future medical expenses.

In a case featured in the documentary Hot Coffee, a couple who gave birth to twin sons alleged that their doctor failed to identify a problem during the mother’s pregnancy, despite multiple complaints by the mother. When another doctor discovered the problem days later, the mother was rushed to the hospital where a further delay of an emergency c-section was alleged to cause further damage to her son.

Doctors testified that the young boy would need life-long medical care, including multiple surgeries. A jury awarded the family $5.6 Million for these expenses. Despite the jury’s findings, the award was reduced to $1.25 Million due to the arbitrary cap on damages. Thus, the family will not have sufficient money to care for their son. The burden will now most likely fall to the public.

Graphic courtesy of Consumer Attorneys of CaliforniaHere in California, we are limited by MICRA, or the Medical Injury Compensation Reform Act of 1975, which caps non-economic damages in medical malpractice cases at $250,000. This is a cap that has not increased since its inception, despite nearly 40 years of inflation. If it had increased, it should be over $1 Million by now.

When Steven Olsen was two, he tripped and fell on a sharp stick that impaled the front of his mouth, face and sinus cavity. His parents took him to Children's Hospital of San Diego where the doctors repaired the damages and tested for infection, and then sent him home.

A few days later, Steven came down with a fever. His parents took him back to the hospital and requested a brain scan in light of his recent accident. The doctors ignored the request and diagnosed meningitis. Unfortunately, Steven had a ruptured abscess caused by the accident with the stick, and suffered serious brain damage as a result.

Plaintiffs alleged that had the physicians checked the lab results of the infection tests, or had they run a brain scan as requested, it was likely Steven would not have suffered the brain damage.

The jury awarded the Olsens just over $7 million in pain and suffering, but the $250,000 MICRA imposed cap reduced that figure to less than four percent of the intended award.

 

Caps Do Not Prevent So Called “Frivolous” Lawsuits

 

Proponents of Tort Reform cite "frivolous" lawsuits, high insurance premiums and better access to health care as reasons to put limits on damages.

But the truth of the matter is that arbitrary caps do not result in reduced premiums, but rather increased profits for the insurance companies. This is why the leaders of Tort Reform are generally the insurance companies.

Personal injury attorneys are not against businesses making profits, or doctors. In fact, my firm does not even handle medical malpractice cases. However, arbitrary caps do not do anything to prevent so called “frivolous” lawsuits – they merely deprive the most seriously injured and damaged people compensation awarded by a jury of their peers.

 

David B. Bobrosky is an Injury Attorney who advocates for the rights and safety of individuals. Contact him via e-mail: dbobrosky@lewitthackman.com.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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