For litigation involving personal injuries – such as a negligence or worker’s compensation claim – an independent medical examination will be an integral part of the process. An independent medical examination, as the term suggests, is an examination conducted by a third party medical professional who is not the plaintiff’s treating physician. The examination is done at the request of the defendant and is used to gain information regarding the plaintiff’s injuries. These examinations are conducted by the defendant as of right, pursuant to the applicable discovery rules of the jurisdiction (for example, § 3102(a) of New York’s Civil Practice Law and Rules permits physical and mental examinations for discovery purposes).
There is a bevy of information that can be ascertained from an examination of the plaintiff, much of which can relate to the requisite elements of the claim. An IME can uncover not just the scope of the injuries, but can also lead to important conclusions regarding damages (permanency of injuries, loss of future earning potential, pain and suffering), as well as whether the defendant’s alleged breach of care proximately caused the injuries. Likewise, in the context of a worker’s compensation case, an examination can ascertain the degree of disability and the necessary amount of benefits. The examining physician would then write a report on their findings, which can be used throughout the negotiation process, or they may be deposed or asked to testify at trial.
Of course, an IME is not “independent” in the sense that the physician is chosen and compensated by the defendant. Also, it is important to be aware of the fact that a formal doctor-patient relationship does not exist between the plaintiff and the examiner. Thus, as a plaintiff, it is critical to tread carefully and be fully prepared when going into an independent medical examination. Likewise, from the defense side, there are certain qualifications your examining physician should have to avoid the appearance of a biased or incompetent report. Below are some issues to consider throughout the examination process.
1) Confirm That The Independent Medical Examiner Is Qualified
As should be the case with any medical expert, the physician performing the IME should be qualified in the particular area of medicine that relates to the plaintiff’s injuries. It does not benefit either party if the examiner is not well versed in the necessary specialties and subspecialties applicable to the case. For example, a plaintiff suffering from spinal cord injuries would benefit from seeing a neurologist or neurosurgeon while a general practitioner would, understandably, be less qualified in that instance.
Likewise, the medical examiner should be a licensed, practicing physician, not a “professional expert” whose sole work is obtained through defense firms and insurance companies. It does not help the defendant’s case if a medical examiner is clearly a “hired gun.” Because it is the examiner’s job to be objective, there should be no perception of bias or partiality. While a defendant may be disappointed if their chosen examiner corroborates the scope of damages as argued by the plaintiff, obtaining a truly neutral medical expert is the safer (and more ethical!) approach, and can avoid legal challenges down the line.
2) Obtain All Necessary Medical Records
A plaintiff should come to the examination fully prepared with all necessary medical records regarding the diagnosis, testing, and treatment of their injuries. Because IMEs are relatively quick and the examiner is not responsible for treatment, it is important for the plaintiff to ensure that the physician is obtaining a complete picture of their injuries. Likewise, it also avoids the appearance that the plaintiff’s side is in any way trying to conceal or hide aspects of their medical history. Any qualified medical expert should take the entirety of the information into account when drafting their report and stating their findings. And if the expert fails to do so, then that provides a potential argument for the plaintiff over the course of litigation.
3) Communicate Clearly With The Physician During Examination
As previously stated, it is not the examiner’s job to treat the plaintiff, as no doctor-patient relationship exists. An examiner’s primary responsibility is the gauge the scope of the injuries for the purposes of determining issues such as potential causation, degree of disability, scope of injury permanency, or damages. That does not mean the examination should be rushed or incomplete. A plaintiff should try to communicate all pertinent information related to their injury to the examiner. While examiners are trained to recognize exaggeration or misrepresentation of injuries, plaintiffs should not shy away from vocalizing the extent of their injuries, pain, or limitations. In some cases, depending on the complexity or severity of the injury, a follow-up examination or a referral to another specialist may be warranted.
4) Ensure The Examiner’s Report Is Complete
Once the examination is conducted, the physician is responsible for drafting a report which is provided to both parties. The report typically outlines the diagnosis, the extent of the injury, and other findings. Typically, a report benefits from objective findings, such as diagnostic testing and medical imaging studies. However, more subjective manifestations of an injury, such as a plaintiff’s pain level rating, should not be overlooked, as they can form an important piece of the medical record. The report can be supplemented if additional medical records are obtained or if the plaintiff is examined again. As this report can be cited throughout the litigation, and can form the basis of the physician’s future deposition or trial testimony, it benefits all parties to have a complete and accurate report.
5) Adhere To Ethical Guidelines
Physicians are bound by a code of conduct and specific ethical standards when acting as an expert for a legal case. However, it is hard to ignore the fact that IMEs are conducted by professionals compensated by the defense. In order to avoid a potential ethical quagmire (and a slew of unnecessary motion practice), both parties should be aware of the ethical standards governing IMEs.
For example, the American Medical Association has set forth the code of conduct governing physicians offering medical testimony, stating that they “have an obligation to assist in the administration of justice.” The AMA requires that all physicians must accurate represent their qualifications, testify honestly, and not allow their opinions to be influenced by financial compensation. In the specific context of IMEs, the American Board of Independent Medical Examiners grants certification to physicians that possess a certain standard of “knowledge, skills, experience, and abilities” to conduct IMEs. Though certification by the Board is not mandatory, nor is it a guarantee that the examiner is void of any bias, it does help set a standard of certain minimum qualifications and education.
Overall, it is important to keep in mind that an independent medical examination can have dire consequences on a case. As such, both parties should ensure that the examination is conducted as thoroughly as possible by a qualified expert.