Litigation

Independent Medical Examination

By Ron Miller

They call it an "independent medical examination."  Really, it is three lies for the price of one. You can't get a better deal at Walmart.  Because it is certainly not independent, there is no medical treatment involved, and there is little, if any, examining going on. There is an entire network of physicians, typically orthopedists or neurosurgeons, who make a very good living working for insurance companies doing these types of exams. They do hundreds of these a year, and often rake in hundreds of thousands of dollars in compensation. I am personally aware of one doctor who has billed a million dollars in one year for this type of work. 

Listen to your client when he tells you about his visit to the defendant's "independent" medical expert. Nine out of ten times, you'll find that your client drove out of town to locate this "specialist", was kept waiting two hours, and was examined for six minutes. Remember that this doctor is the fellow who is going to write a report stating unequivocally and with a reasonable degree of medical certainty that you client is a malingerer, or that his injuries were pre-existing, or are not permanent, or anything else that he can think of that helps the defense and hurts the plaintiff. Be prepared to let your client tell the world every painstaking detail about that "comprehensive medical examination" that took six minutes. He'll amaze you and your opponent. If such an examination takes place, the client should be carefully prepared. I provide each client with a written instruction sheet with tips for his conduct during the examination, what topics should and should nto be addressed, and things to look for. We also provide each client with a note sheet to be completed immediately after the examination, with spaces to records things like wait time, length of examination, questions asked, paperwork completed, and tests or X-rays performed. This can be a valuable supplement to the client's testimony about the examination.

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How to deal with a defense request for a pre-suit examination depends to a great extent on the subjective law of your state and the posture of your case. There is seldom a good reason to permit such an examination of your client pre-suit., unless your claim is of such a type that your client is required to allow an exam. For example, in auto cases some states have no-fault or expansive PIP schemes where an exam in permitted by statute.  This is never, to my understanding, available anywhere in the U.S. for medical malpractice claims. Also in auto cases involving claims for uninsured or underinsured motorist benefits, a pre-suit exam may be contractually required by the client's auto insurance policy. In these cases, the best strategy may be to attempt to control the examination as much as possible. You may be able to gain input into what doctor is selected to do the exam, or to obtain an agreement that the pre-suit exam will be the only one permitted, even in the event the case proceeds to litigation. Most personal injury lawyers know well the insurance industry's "usual suspects" in their local area. You may be able to steer the exam to a more objective doctor, but be aware that if the exam is unfavorable to your client, you have likely given up some of the value of a good cross-examination of a clearly biased doctor. However, if your direction results in a doctor issuing a favorable report, you have effectively enhanced the settlement value of your client's case.

Once litigation has commenced, there are a whole different set of rules about these examinations. This can include placing conditions on the examination, or requiring the defense to get a court order requiring the examination. Then, after it has taken place, you can have a great deal of fun advocating for your client by seeking, obtaining, and effectively using bias discovery. That is a topic difficult to cover briefly, and not really relevant to a discussion of pre-suit settlement techniques

By the way, it is worth nothing, I don't want to paint too broad of a brush here. I'm not saying there are not a lot of good doctors out there who are making a lot of money and still offering honest opinions, even those working in almost a captive capactiy for insurance companies.   But, as almost any car accident lawyer will tell you, albeit cynically, this is not the norm.

Full post as published by Trial Lawyer Resource Center on October 04, 2010 (boomark / email).