Personal Injury: The “Independent” (Defense) Medical Examination Required By Law
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:
- The examination may not include any diagnostic test or procedure that is painful, protracted, or intrusive; and
- The examination must be conducted within 75 miles of the Plaintiff’s residence.
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
If 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.