Personal Injury Litigation: The Independent Medical Exam

Independent Medical Exam DoctorIf you have a case where you have had to file a lawsuit, at some point you may be asked to submit to an “Independent Medical Exam.”  Rule 35.01 of the Tennessee Rules of Civil Procedure authorizes the use of this procedure if your “physical condition … is in controversy.”     Practically speaking, anyone who sues for personal injuries in Tennessee has put their health “in controversy”, although the clear text of the rule states that the motion for examination can only be made on motion for “good cause shown.”  TRCP 35.01.

DEFENSE (NOT INDEPENDENT) MEDICAL EXAM (DME)

The exam is entitled in mythical fasion … i.e. an Independent Medical Exam.  The truth is… there is NOTHING independent about it.  The exam is not asked for by the judge.  There is no outside party or interest asking for the exam.  Rather, it is asked for by the defense lawyer representing the defendant and more accurately, the defendant’s insurance carrier. 

The insurance company for the defendant will often match the same type of doctor which the plaintiff has been treating with for her injuries.  For example, if the plaintiff has been regularly treating with an orthopedic surgeon for her injuries, the defense will find a counter opinion from another orthopedic doctor.    If there are multiple doctors for the plaintiff in varying specialties, the defense may also ask the plaintiff to see several doctors of similar specialties.

The IME / DME doctor will be paid for by the insurance company representing the plaintiff.  That doctor will write a report that will give every doubt in the defendant’s, not your, favor.   Usually, this doctor has worked for the same defense lawyer and same insurance company many times.  These type of doctors can average much more money net per hour than they do running their practice, and therefore have a financial incentive to keep the insurance/defense attorney referrals coming.  Many IME / DME doctors can earn 6 figures per year as a side business for the insurance companies.

The IME / DME doctor will provide a written report to the defense attorney and their insurance company, outlining weaknesses in the medical records that will hurt the plaintiff.  They are hired advocates for the insurance company.  Their job is to lessen the damages awarded to the plaintiff and to avoid any blame for the defendant if possible.  The DME doctor  rarely knows the name of the defendant, but knows the defense attorney very well.

WHAT YOU NEED TO LOOK OUT FOR

Your attorney should brief you before you go to this examination.   Some basic rules you must follow to protect yourself are:

  1. NEVER fill out any paperwork for the IME / DME doctor. This will be used against you.  There is no law or rule that requires you to do anything.   I do not let my client’s do this, and you should not either.
  2. NEVER attend the DME alone. Take a friend.   Have the friend record the conversations with the doctor if legal to do so in your state.  Doctor’s often claim the plaintiff is “late” or “uncooperative” for the simple purpose of lessening the credibility of the plaintiff.
  3. Be nice. Always be on time, courteous, and respectful to the doctor.
  4. Give 100% effort if asked to complete a task. Doctor’s will often say you are malingering or faking if they are given the chance.  Do your part in not giving them more ammunition against you.  The insurance doctors are trained to detect a lack of effort.
  5. Ask your attorney to file a motion to videotape the examination. Doctors hate this, but we have been successful getting Orders from the court allowing us to videotape these examination.  This act of videotaping usually quells the doctors who are overbearing and just plain rude.  It also shows how long they make the client have to waste their day, waiting sometimes over 2 hours after the IME / DME was set to start.   It’s fine for the doctors to be late, but if the plaintiff is, they will use it against you.  Videotaping is a great way to fight back.  You may also wish to videotape parts of your own exam to combat the DME doctor’s tricks.
  6. Remember that no matter how nice the doctor is, he is NOT your friend. He is paid to destroy your case, and will often do it with a smile and a pat on the back.  IME / DME doctors get repeat business because they are good at what they do… they hurt your case.
  7. Be Honest at all times with the IME / DME doctor. Many times they ask you questions regarding your treatment history.  Most of the time they already know all of the answers to the questions they are asking.  They are testing you.   Be especially honest when asked about prior injuries.  Even if the injuries are not related to your current injury, if you don’t tell them, they might insinuate you are lying about your prior history.

If you fail to prepare for a DME, you may be like a lamb led to a slaughter.   A lawyer should never allow his client to go into the DME enemy camp without being fully prepared for what is about to happen.    If you have any questions about your DME, let us stand up and fight for you. Call us today at 877-959-8847 or complete a free initial consultation form.

John Griffith
Nashville Personal Injury Trial Attorney