Your Rights and Responsibilities at a Defense Medical Examination

Your Rights and Responsibilities at a Defense Medical Examination

What Is a Defense or Independent Medical Examination (IME)?Stethoscope and Paper

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 manner in which so-called “independent medical examinations” 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.

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

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.

Issues to expect to address during the IME

The plaintiff must be prepared to address in detail the following subjects with the independent medical examiner:

  1. 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;
  2. Prior social and recreational activities;
  3. Events on day of accident, in great detail;
  4. Plaintiff’s role and responsibility for the accident, to show contributory negligence;
  5. Detailed itemization of all injuries sustained;
  6. Chronological medical history subsequent to the day of accident, with treatment by each health care provider;
  7. 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;
  8. Prior and subsequent accidents with injuries;
  9. Plaintiff’s opinion of the nature and extent of disability and impairment of each area of the body that was involved;
  10. How activities of daily living and recreational activities are affected;
  11. Temporary restrictions imposed by doctors;
  12. Functional capacity evaluations or permanent restrictions imposed by doctors;
  13. Physical exertion category of work plaintiff is capable of doing with restrictions;
  14. Transferability of skills from work done prior to injury;
  15. Time lost from work, with specific dates;
  16. Work history after accident;
  17. How the injuries have affected ability to do basic work activities; and
  18. 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.