What is an “Independent” Medical Examination?
The defense lawyer in a personal injury case will often want to have the injured plaintiff examined by a doctor paid by the defense. This doctor then writes a report which is sent to both sides. This doctor is usually available to testify at trial.
Let’s get our terms straight first. The defense calls this an “’Independent’ Medical Examination,” but we as plaintiff lawyers always put “independent” in quote marks because it’s not really independent in the sense of neutral. These doctors often are hired over and over by the same law firms and same insurance companies. These “frequent flyer” witnesses often develop a reputation and track record as one-sided, biased witnesses who see their job not as giving a neutral, independent evaluation but as doing their best to minimize the plaintiff’s injuries or even accuse the plaintiff of faking or exaggerating what’s wrong. Not all these doctors are like that, but a significant fraction.
Here is a hair-raising story about one independent medical examiner doctor whose testimony about what a patient had allegedly told her during the examination was repeatedly contradicted by the actual recording of the examination (recorded by the plaintiff’s attorney over the objection of the defense). If you read this, you’ll see why we put the word “independent” in quotes. And you will also understand what serious business this is getting your body or mind “examined” by someone who is eager to twist or distort what you say.
So we call it a “defense medical exam.”
Who is the doctor and what can I find out about this person?
You have a right to know the exact name of the doctor who will conduct the exam. Your attorney can give you the doctor’s background. You can count on the doctor being well-trained and experienced in his or her field. Often the doctor will be in the twilight of his or her career, performing exams like this as a way of winding down the practice of medicine. But sometimes, as noted above, this is a doctor who runs an “examination mill,” and that’s worth knowing up front. Your lawyer should have this information.
Can I get good medical advice from this doctor?
No. Although the doctor may be polite and even kind, it is important to remember that he or she is not there to help you, but to help the defense. The doctor will be on the lookout for any evidence of exaggerated complaints; evidence that you were not injured in the way you have claimed; and/or anything that will help the defense’s case. For this reason, it is important that you are well prepared for the examination.
Do I need to do anything ahead of time to get ready for the exam?
Yes. It’s a good idea to sit down and write out a list of everything that is wrong with you now, and how your life now is different from before the injury. Work with your attorney to prepare this list. You want to make sure it matches your medical records, so no one can accuse you of lying or exaggerating. Your list should include:
• Dates and nature of any injuries before the one that your legal case is about.
• List of any medications you were taking regularly right before the injury that is the subject of your case.
• List of current medications you are now taking.
• All your current physical problems that relate to this injury.
• Any mental or emotional problems you’re experiencing as a result of this injury.
• How those physical, mental and emotional problems from the injury affect your daily life. (Include everything, even small stuff.)
• Any unrelated physical, mental or emotional problems that you would be having anyway, not connected to this injury.
• Dates (approximate) and nature of all surgeries, hospital stays, treatments, and any other significant medical history in your life, both before the injury, and after.
Should I bring this list with me to the exam?
Yes. You may or may not want to give it to the defense examiner. Discuss that with your lawyer. You should at least use this list to fill in any forms at the examining doctor’s office, thoroughly and accurately.
How thorough and careful do I need to be in this write-up?
Very thorough, and very careful. If you leave out any information, the defense may accuse you of trying to hide something which could hurt your case. Remember that the doctor is examining everything about you to report back to the defense attorney. This includes: how well you walk, your ability to get on and off the examination table, and your overall demeanor.
If you forget to mention a specific symptom or problem, the defense doctor may claim, or even testify, that you never had it. Think of the things that you would normally do without restrictions for example: getting dressed, walking, bathing, cooking, etc. Do you experience pain while doing these basic activities? Does your injury place restrictions on performance of your daily routine? It might be helpful to ask those who are around you what differences they have noticed since your injury.
Be as honest with yourself as possible. Do not try to downplay your symptoms, but do not claim any symptoms that you have not experienced.
What about getting to this doctor’s office?
You will need to make definite travel arrangements to and from the doctor’s office. Find out where the office is and the name of the doctor the defense has hired for you to see. If it’s far from where you live, let your attorney know if you will need hotel accommodations so that they can have the defense cover that. If you are unable to drive to the appointment yourself, you can ask a spouse or a friend to accompany you.
Can I have someone with me in the exam room?
Usually, yes. In many states, a witness is allowed to be present during your examination. If you would feel more comfortable having someone with you, talk to your personal injury attorney in advance so they can make the necessary arrangements. If you have a very severe injury, your lawyer may hire a nurse or some other qualified professional to attend the exam with you.
How long will this take?
Be sure to arrive early for your exam and clear your schedule for the day. Expect for the examination to be a full day process, as you may have to wait for the doctor to see all of his regular and emergency patients before he can see you.
Also, if it’s a psychological examination, it may last all day or even more than one day. There is a specialty of psychology called neuro-psychologists, who focus on brain injury. They administer batteries of tests, similar to intelligence testing you might have had in school, to look for subtle signs of a brain injury’s effects on things like memory, organizational skills, thinking and judgment.
What do I do on the Day of the Exam?
The thought of the examination may be nerve-wracking, but try to remain calm and relaxed to avoid giving the impression that you are hiding something.
You will not need to show any insurance as your visit will already be paid by the defense. Therefore, you will not need to sign any form agreeing to pay the doctor any amount.
When you arrive at your appointment, be polite and cooperative with everyone there including the office staff. Even though you came to be examined by the defense doctor, he or she may have instructed his staff to monitor you as well. Speaking of which, be sure to only see the specific doctor hired for you by the defense. If another doctor is suggested to you, simply say that your attorney has instructed you to only see the specified doctor. Likewise, if you have already seen the appointed doctor and the clinic asks you to see another, inform them that your attorney has instructed you to see only the designated doctor and no one else.
Try to avoid talking about anything other than your injuries and how they affect you. If the doctor begins to ask specific questions about the accident, politely tell them that your attorney has instructed you not to discuss details concerning the accident. It is important to stay pleasant but do not let the defense doctor take advantage of you.
You should also make a point to watch the time while you are in the examination room. By the end, you will want to know how much total time the doctor spent with you.
Is the doctor there the entire time? Is he constantly leaving the room? Without making it obvious, keep track of the time he is actually evaluating you. Often, the doctor is only with you for a few minutes in between tests without actually conducting a thorough examination. This could potentially be good information for your personal injury attorney.
What Happens During a Defense Exam?
The beginning of your examination will probably be a series of questions about your medical history and accident injury. Be polite, complete and thorough with your answers. If you do not fully understand a question, don’t hesitate to ask for clarification. Remember that the doctor has been hired to help the defense and anything you say in the office could potentially be used in court.
Do not under any circumstances lie to the doctor. They have probably worked with defense attorneys many times before and are trained to sense when you are not telling the truth. This will almost certainly hurt your case.
Remember also that this doctor will have access to ALL of your medical records that relate to this injury, and any that relate to your health before the injury.
You should describe your pain to the doctor in terms of what you can and cannot do. Use statements like “It hurts when I …” and “I am unable to …” Pain can be very hard to explain, but try to be as detailed as possible, not omitting any aches or pains. Tell him or her where the pain is located and do not try to downplay any of your symptoms. Do not try to be modest about the pain you are experiencing but also, do not exaggerate it. Be honest.
What kind of tests will be done?
That depends on your specific type of injury. The doctor will probably conduct the common tests that you are accustomed to and then some that may seem strange to you. Depending on the nature of your injury, the doctor may ask to observe you do things like walk, undress, and fully turn your head.
The doctor may make a point of watching you walk when you don’t realize you’re being watched. If you have a limp, for example, when you’re in the doctor’s presence, but the doctor watches you leave the office after the exam with no limp, you can count on this contrast being mentioned in the doctor’s report. Again, the rule is: No exaggeration!
Other tests you may experience include X-Ray, CT Scans, and MRIs. If you will get any of these imaging studies or other big tests, this should all be disclosed to your attorney ahead of time.
Any really unusual tests can be the subject of negotiation between your attorney and the defense, and your attorney might even file a motion in court to block some kinds of non-standard testing. An example might be DNA sequencing to fish around for some sort of genetic abnormality when there is no real suspicion that you have such an abnormality or that it has any bearing on your injury.
You will not have to return to the office for the results, as they will be in the report sent to your attorney.
What if the doctor or the doctor’s staff wants me to sign something?
As a general rule concerning your case, you should not sign or consent to anything without first consulting your attorney. Therefore, if at any point the doctor asks you to sign any waivers of liability or consent, let them know that you have been instructed by your personal injury attorney not to sign anything.
What if I have questions during the exam?
Do not hesitate to ask to take a break. You can then contact your attorney. You may want more clarification on how to answer questions or if you should proceed with various tests.
If you are concerned about any of the tests and how they could potentially affect your health, let the doctor know that you would prefer to first talk to your attorney or primary care physician. Your comfort and wellbeing should be your number one priority, so do not feel pressured into doing anything you are uncomfortable with.
What do I need to do after my defense exam?
After the examination, write down as much as you can remember about the entire process. Try to remember what questions the doctor asked you and how you answered them. Be as detailed as possible. Call your personal injury attorney and tell him or her all of the details including when you arrived at the office, how long you waited to see the doctor, and how long the examination lasted. Be sure to let your attorney know if the doctor had a recording device with them, and if so, what all they recorded. The defense doctor will write a report for the defense team who will send it to your attorney who will then review it with you.
How can you mess up your defense medical exam?
• Exaggerating your problems. The defense doctor is looking for ways in which your injury is not as bad as you have claimed. If you exaggerate any of your pain or disabilities, the defense can claim that you have exaggerated all of it, and this could lessen your credibility.
• Mentioning anything you’ve never told any other doctors. If you bring up any new information to the defense doctor, they will wonder why you did not mention it before. This will allow the defense to claim a variety of reasons as to why you would be hiding information. Consistency is key.
• Denying previously documented injuries. More than likely, the defense doctor has reviewed all of your medical records. Lying or even “forgetting” about previous injuries will prompt the doctor to believe you could be lying about your current injury as well.
• Being overly talkative about the accident. The defense doctor may seem very nice and concerned about your accident injury. Be courteous, but remember his purpose is to gather information that could potentially hurt your case.
Yes. Remember what Mark Twain said: “If you tell the truth, you don’t have to remember anything.” It’s not always that easy, because you are being asked to remember and talk about details that most of us would just as soon forget. That’s why being thoroughly prepared for your examination is the best way to get through it.