Your Rights and Responsibilities at an Independent Medical Examination
Whenever any person puts his or her mental or physical condition at issue in any case in which compensation is sought, the insurance company or other responsible party defending the case has a right to have an “independent” physician examine the plaintiff. The request for an “independent medical examination” by the insurance company — more properly termed a “defense medical exam” — often makes claimants nervous. But an experienced Orange County injury attorney at Russell & Lazarus APC can help you understand what to expect.
Below, we explain your responsibilities and rights with regard to the independent medical examination. The manner in which these exams are carried out is often disputed, and they are better viewed as a defense-oriented exam rather than an independent exam. If a plaintiff is not properly prepared for what lies ahead, the claim can be lost or seriously damaged.
What Is the Legal Standard for the Examination?
Most states have a statute or court rule setting forth what a defendant must show to obtain the examination, but the defendant’s burden of proof varies in three primary ways. In many states, the defendant must always show good cause to obtain an order requiring the plaintiff to appear for an IME. However, California requires good cause only in non–personal injury suits, and provide for an IME as a matter of right in products liability cases where the plaintiff has placed his or her physical status at issue. Other states simply provide for an IME as a matter of right where the physical or mental condition of a party is in controversy.
Logistical Issues Involved in the Independent Medical Examination
The defending party must give reasonable notice of the time, place, manner, conditions and scope of the examination, and the identity of the examiner. Usually, only one independent medical examination is allowed, unless there is good cause shown for more. The claimant is not allowed to object to the identity of the examiner without a compelling reason.
In most jurisdictions, the plaintiff is reimbursed for mileage to and from the examination. The defendant must pay for the examination by its doctor. The defendant must provide a copy of the report to the patient or the plaintiff’s attorney within a reasonable time after the report is available.
In exchange, the plaintiff must provide true and correct copies of any and all reports of each person who has examined or treated the claimant with respect to the injuries for which damages are claimed, and a medical authorization to the defendant to allow it to obtain any and all records, radiological films, or other evidence of the plaintiff’s condition. Any physician-patient privilege with respect to the condition at issue in the case is deemed to have been waived by the making of the claim for compensation.
The independent medical examiner is subject to being examined under oath by the claimant’s attorney at a deposition or by cross-examination at the trial or hearing. The choice of the examiner generally rests with the requesting party.
Preparing for the IME
The plaintiff’s past medical history, history of present illness, cause of condition, subjective complaints, objective findings on physical examination, laboratory testing, diagnosis, treatment history and prognosis can be called into question and discredited if the claimant is not accurate in reciting the facts during the independent medical examination.
States vary on whether the plaintiff’s attorney may be present in the examination and what the standard is for allowing the presence of counsel. Even if an attorney may attend, plaintiffs should not count on being able to present testimony at trial regarding their attorneys’ version of what occurred at an IME.
The plaintiff and counsel should meet in advance of the IME, and go over all prior relevant medical records. No prior doctor visit for the same condition should be overlooked, because the plaintiff will be asked about it during the independent medical examination. Inaccurate responses from the plaintiff when questioned by the independent medical examiner about a prior knee injury, back or neck problem, visits to a chiropractor, absence from work, minor car wreck with an emergency room visit, or x-ray of the same joint, etc., can prove to be all the defense needs to conclude that the plaintiff is trying to hide something, and that the claim is illegitimate.
What Issues Will Be Addressed During the IME?
The plaintiff must be prepared to address in detail the following subjects with the independent medical examiner:
- Prior health and medical history, including any and all traumatic injuries from vehicle accidents, work accidents, falls, and sports accidents, and all visits to all health care providers for the same or any related condition;
- Prior social and recreational activities;
- Events on day of accident, in great detail;
- Plaintiff’s role and responsibility for the accident, to show contributory negligence;
- Detailed itemization of all injuries sustained;
- Chronological medical history subsequent to the day of accident, with treatment by each health care provider;
- Timetable for acute and chronic stages of each injury, how pain was rated on each prior doctor visit, what hurts now, and how pain is rated currently;
- Prior and subsequent accidents with injuries;
- Plaintiff’s opinion of the nature and extent of disability and impairment of each area of the body that was involved;
- How activities of daily living and recreational activities are affected;
- Temporary restrictions imposed by doctors;
- Functional capacity evaluations or permanent restrictions imposed by doctors;
- Physical exertion category of work plaintiff is capable of doing with restrictions;
- Transferability of skills from work done prior to injury;
- Time lost from work, with specific dates;
- Work history after accident;
- How the injuries have affected ability to do basic work activities; and
- Future treatment expected.
The independent medical examination is a core element of personal injury litigation. An IME can be a key component of prosecuting or defending a personal injury case. Plaintiffs should be sure to heed the potential pitfalls in arranging IMEs, or in responding to such a request from a defendant.
What to Do After the Independent Medical Examination
Your personal injury law firm in Newport Beach might ask that you meet with them right after the examination. If the suit is pending, the Newport Beach personal injury attorney might want to talk while your memory is fresh. If there is not a suit pending, your personal injury law firm in Newport Beach will call you soon after, but it may not be that same day.
After the medical report is turned in, the your attorney will look at it and compare it to any other medical reports. Your attorney will also look to be sure everything is accurate and correct on the documentation. If there are any inaccuracies your law firm will send a letter outlining any inaccuracies.
If the report is not in agreement with earlier doctor’s findings your lawyer can schedule a conference. This will be to find out whether the doctor is still of the same opinion on the important points. If your doctor changes his or her opinion based on the IME, this will require a reevaluation of your settlement position. It is important for your attorney to determine why the physician either agrees with his original findings or has changed based on the new report.
Proving Invisible Injuries in Orange County Personal Injury Cases
Proving invisible injuries in an Orange County personal injury case can be difficult and requires a special set of lawyering skills.
Invisible injuries – or those types of personal injuries which are not readily observable externally – can range from extremely serious traumatic brain injuries to painful soft tissue injuries, such as muscle sprains and strains. The right combination of medical records and witness testimony can go a long way in successfully proving your case and helping you to obtain the monetary damages to which you’re entitled. This article will explore some basic techniques for proving invisible injuries in Orange County personal injury cases.
What Are Traumatic Brain Injuries?
Traumatic brain injuries are a type of catastrophic head injury where the amount of blunt force to the head is intense. This causes the brain to move about inside the head and make direct contact with the front or back of the skull, resulting in severe and long term damage to the injured plaintiff’s brain and functioning.
Traumatic brain injuries are commonly sustained in serious slip and fall accidents or in severe motor vehicle, bicycle, motorcycle, or pedestrian accidents, where the injured plaintiff’s head makes direct contact with a part of the vehicle or the ground. Bicycle, motorcycle, and pedestrian accidents are especially likely to result in traumatic brain injuries because the injured plaintiff is directly exposed to his or her surrounding environment.
Types of traumatic brain injuries include concussions, cognitive impairments, short and long term memory losses, psychological and psychiatric injuries, and spinal cord injuries, to name a few. In many cases, treating these types of injuries requires long term care at a nursing home or assisted living facility – or lengthy periods of hospitalization. Treatment can be painful and lifelong.
How to Prove Traumatic Brain Injuries
As your Orange County personal injury attorney will tell you, both lay witness testimony and expert witness testimony play an important role in proving traumatic brain injuries. In many traumatic brain injury cases, the cognitive impairments are so serious that the injured person is unable to testify on his or her own behalf. In those cases, lay witness testimony becomes especially important. Lay witnesses in these cases are usually family members, friends, or coworkers. These individuals can testify how, in their observation, the injured person’s work life, family life, and social life have changed as a result of the traumatic brain injuries sustained in the accident. These witnesses can also paint a picture for the ladies and gentlemen of the jury about what the injured plaintiff’s life was like before the accident (i.e. a normal life), as opposed to after the accident.
Expert testimony is also essential to proving traumatic brain injuries. Expert witnesses are typically healthcare providers, such as doctors, physical therapists, psychiatrists, and psychologists. These individuals can testify firsthand about the nature and extent of the injuries sustained and about how these injuries are expected to impact the plaintiff’s life for the foreseeable future, given his or her age, vocation, and activity level. Vocational rehabilitation experts may also be called upon to testify about an injured plaintiff’s inability to continue at the same job or career – or to work in any capacity – as a direct result of the accident and the injuries sustained.
Soft Tissue Injuries
What Are Soft Tissue Injuries?
Soft tissue injuries can be equally difficult to prove. Soft tissue injuries are those types of injuries where surgery or other invasive medical treatment is not necessary or required. The most common types of soft tissue injuries are muscle sprains and strains. There are no fractures associated with soft tissue injuries.
How to Prove Soft Tissue Injuries
In order to prove soft tissue injuries resulting from a slip and fall, motor vehicle accident, or other type of accident, it is first necessary to point to objective findings in imaging reports, such as x-rays and MRI’s. These objective findings may include disc bulges or ligament tears. It is also important to highlight objective findings in the injured plaintiff’s medical records and permanency evaluations, such as demonstrable losses of range of motion or other deficiencies that are directly attributable to the soft tissue injury (as opposed to preexisting medical injuries, medical conditions, or degenerative changes).
In order to prove soft tissue injuries in an Orange County personal injury case, it may also be necessary for the injured plaintiff to undergo a permanency evaluation (i.e. when he or she is claiming permanent injuries resulting from the accident). During a permanency evaluation, a healthcare provider examines the injured plaintiff – not for purposes of treating him or her, but rather, for purposes of generating a permanency rating for the injured body part(s).
The permanency evaluation doctor will thoroughly examine the injured plaintiff, make objective findings, and establish a permanency rating for each of the injured body parts, relative to the whole person. For example, the permanency evaluation doctor may find that a plaintiff sustained a 20% whole person impairment to her neck and back as a result of soft tissue injuries sustained in a motor vehicle accident. A permanency evaluation doctor may also opine as to the necessity and cost of future medical procedures that the injured plaintiff might require, should his or her condition worsen over time.
Contact an Orange County Personal Injury Attorney
While proving invisible injuries in Orange County personal injury cases can be challenging, it is certainly not impossible. These types of injuries are provable with the right combination of lay witness testimony, expert witness testimony, permanency evaluations, and objective findings in medical records.
It is essential that you immediately contact an experienced Orange County personal injury attorney who will be able to assist you with proving your case and maximizing its value, both throughout settlement negotiations with the insurance company and at trial.
Why Proving Invisible Injuries Is So Difficult
Invisible injuries such as whiplash, soft tissue injuries, and mental suffering are often derided. Defense counsel, insurance companies, judges, and juries may be wary of injury claims where the proof of damages does not readily present to an ordinary observer. Serious injuries from accidents, initially unseen to the untrained eye, occur and result in significant pain and distress to the sufferer. If not properly treated, these injuries may become chronic and more severe.
What Kind of Proof Do You Need to Provide?
Plaintiffs who claim to have suffered a personal injury must prove that they have been damaged. Even if a plaintiff can prove liability, without adequate proof of damages, there is no case. Therefore, a plaintiff’s account of an injury and how it occurred is critical. The plaintiff must indicate conscious suffering of an injury or some pain and suffering whether at the time of the incident, or shortly thereafter. The plaintiff must be able to state with reasonable certainty when the symptoms of pain and suffering began to appear.
A personal injury plaintiff should identify any witnesses who can corroborate the pain and suffering. For instance, a plaintiff suffering from pain and distress may cry in pain, exhibit pinched facial features, and have difficulty in completing routine activities of daily living. An injured person may suffer from headaches, nausea, dizziness, and limited range of motion. Witnesses to these symptoms should exist. Witnesses could include medical personnel, bystanders, family members, co-workers, and others whom the plaintiff comes into contact during daily life.
Be Honest During Your Initial Medical Examination
A person who suffers an injury with significant pain and suffering needs to go to a doctor and seek treatment. It is important for a personal injury plaintiff to provide detailed accounts of symptoms to a physician. These injury and symptoms should be described at length during the initial examination.
For instance, a person who is rear-ended in a motor vehicle and experiences sharp shooting pain as a result should describe the severity and whether the pain is constant or intermittent. The physical examination is not the time for a patient to hold back with regard to complaints and symptoms. A patient will be asked to describe the incident that caused the injury. For example, in a motor vehicle accident, the patient would describe parts of the body that were struck against the interior of the vehicle. The patient should describe the force of the impact and whether they lost consciousness. The patient may have suffered fatigue and lack of sleep since the injury, and this fact should be relayed to the physician.
Give a Complete Overview of Your Pain
The importance of the history of the injury and the signs and symptoms cannot be understated. The patient may indicate suffering from pain in areas of the body such as the spine, arm, or elbow. Patients should explain whether they suffer from numbness and tingling, and where. If the plaintiff suffers muscle spasms, the physician should be informed of the frequency, the severity, and any past history of muscle spasms. The patient should explain whether pain or discomfort is increased while undertaking certain activities such as bending or stooping. The effects of the injury on routine activities such as driving and reading are evidence of damages.
Providing a physician with an accurate and complete summary of the patient’s medical condition and capabilities before the accident is important for an accurate diagnosis. Based on the manifestations of an injury, the physician may prescribe drugs, physiotherapy, or physical therapy to treat the injuries. More serious injuries may require surgery. The patient will undergo range of motion tests. A palpation evaluation will be conducted to gauge the patient’s response to pressure and to examine tissue consistency. The physician will take a complete medical history of the plaintiff.
Don’t Exaggerate Your Symptoms
Medical records from before the incident may reveal a pre-existing injury or an exacerbation of a previous injury. Objective diagnostic testing, a complete physical examination, and the patient’s medical history along with subjective statements of pain and suffering paint an overall picture that lends credence to plaintiff’s injury claims or not. Exaggeration takes away from credibility.
Inconsistencies between the objective and subjective may suggest malingering. When the injuries in dispute are “invisible” injuries the plaintiff’s credibility is all-important. Expert medical testimony regarding the plaintiff’s presentation and behavior, the course of treatment, responses to treatment, and the prognosis for the future course of the injury will play an important part in proving invisible injuries.
Mental Pain and Suffering
Mental pain and suffering, including grief, anxiety, shock, mortification, humiliation and fright, are forms of psychological distress that may be invisible upon initial observation. Psychological testing and a written report by a clinical psychologist or psychiatrist are persuasive evidence that can connect the mental pain and trauma of the plaintiff as a product and normal consequence of the accident. Neurological testing will reveal neurologic abnormalities. Results may be consistent with severe trauma or a blow to the head.
For injuries that involve head trauma, expert testimony from an expert in neuropsychological assessments can give scientific credence to the occasionally vague manifestations of a head injury such as the failure to concentrate and loss of memory. An expert in the neurology and neuropsychology will assist the jury in quantifying damages such as the diminution of an injured plaintiff’s cognitive abilities, and a diminished capacity for the enjoyment of life.
Follow Your Doctor’s Treatment Plan
In summary, a plaintiff’s medical history, a detailed summary of how an incident occurred, objective diagnostic testing, a plaintiff’s subjective accounts of injury, and corroborating witness testimony provide evidence of a plaintiff’s damages. It is important for an accident victim to be forthright in describing complaints. Just as important, injured parties should follow the treatment plan prescribed by medical professionals.
Patients who willfully ignore physicians’ recommendations and miss appointments for treatments that are designed to decrease pain, decrease symptoms such as spasms, and improve range of motion are the plaintiffs who will not be able to prove damages.
Speak to an Orange County Personal Injury Attorney Today
It’s important to understand your rights and responsibilities both before and after the independent medical examination. At Russell & Lazarus APC, we can help you avoid making mistakes that could hurt your claim. Contact us today to learn more.