Is the “Independent Medical Exam” for Your Personal Injury Accident Case Actually Independent?
In the event of an automobile accident where a victim sustains injuries that require a personal injury lawsuit, the insurer responsible for paying the claim will often insist that said victim undergo an independent medical examination (IME). Though an IME is supposed to be “independent,” many victims, along with their legal representatives, would argue that it is anything but. In truth, ‘independent’ is actually an inaccurate description given that the doctor who performs the injured party’s exam is far from neutral, actually chosen by the insurer to represent them, rather than the victim (or to serve impartially to weigh the findings on behalf of both parties).
Given that fact, the chosen doctor should, in effect, be viewed as a representative for the insurer’s legal team, rather than an independent party. It therefore stands to reason that the examining doctor will certainly be inherently biased and more sympathetic to the position of the insurer.
In fairness to the insurer (or defendant), the rationale behind an IME is seemingly to offer a different medical opinion or perspective from that of the victim’s treating doctor. A victim with serious injuries requiring treatment is placed under the care and supervision of his or her attending physician, and the insurer could argue that they are inevitably biased in favor of the patient given their relationship and the large amount of one-on-one time they can require.
Goals of the Defendant’s Insurance Company:
The ultimate goal of having a doctor conduct an IME on behalf of the insurer is to first establish a differing medical opinion from that of the victim’s doctor (which happens in virtually all cases), providing a legal basis for the insurer to dispute the victim’s claim. In most cases, if the insurer makes a formal request for the victim to undergo an IME, he or she will be required to do so before the case proceeds to trial (or even informal settlement negotiations begin in earnest). It should also be noted that a required IME is frequently standard procedure if you live in a no-fault state and are making a claim under no-fault insurance. California is not a no fault state, while Florida, Michigan, New Jersey, New York, and Pennsylvania have verbal no-fault thresholds. Hawaii, Kansas, Kentucky, Massachusetts, Minnesota, North Dakota, and Utah utilize a monetary no-fault threshold.
If you are the victim of a car, truck, motorcycle, or bus accident (to name a few scenarios) filing a personal injury suit, there are certain norms in terms of the likely outcomes of an IME that you should be aware of and prepared for in advance. Typically, once an IME is conducted, the resulting findings via the insurer’s chosen doctor tend to reflect the following pattern: 1) that victim’s injuries are less (in many cases deemed much less) severe than they are claiming, 2) that their injuries are, in fact, not the result of the accident, and/or 3) that the victim is actually not injured in any way.
Steps and Best Practices for Injured Parties to Take Before and While Undergoing an Independent Medical Exam:
Victims are encouraged to consult with their attorney and treating physician prior to undergoing an IME, and most personal injury attorneys — including Sam Dordulian, former Deputy District Attorney for Los Angeles County and the president and owner of Dordulian Law Group in Glendale, California — advise their clients to:
1) “Understand that an IME is not actually an independent medical exam.” Rather, as Dordulian points out, “The more accurate term would be DME (defense medical exam), which can only serve to benefit the defense’s case. It’s important for the client to appreciate these facts so they don’t go in believing that the doctor conducting the IME (referred to hereafter as a DME) is truly neutral and interested in doing what’s best for the client. Instead, the client needs to understand that this is a defense doctor whose agenda is to help the defense any way they can.”
2) According to Dordulian, it is also important to have the client review the prior statements contained in medical reports/records, and other related documents, to ensure they are consistent with their claims and complaints. “Consistency is critical, and anything they [the injured client] says that is inconsistent with prior statements could be very damaging,” stated Dordulian.
3) As such, Dordulian expounded on this thought by stating, “I remind my clients that their DME exam doesn’t start when they walk into the exam room. It’s important to remember that they are being watched from the time they arrive at the office, to the time they leave post-DME exam. Moreover, sometimes they are watched from the parking lot as they walk into and out of the doctor’s office. While the client should be honest and not standoffish, since this is a defense doctor they need to remain vigilant, keeping their guard up at all times and making sure all their issues and complaints are clearly voiced. Additionally, do not ask the DME doctor for advice, and avoid social conversation (e.g. small talk).”
4) Finally, Dordulian told PINews.com that, “I always remind my clients they shouldn’t consume the pain meds that they have been taking while injured on the day of their DME evaluation. Though that might seem problematic given the increased pain, they don’t want the medication’s effects to mask that pain or physical limitations that the DME physician needs to observe first-hand and then assess.”
Some additional recommendations, many considered to be universally accepted by personal injury attorneys representing clients facing a DME include:
A) Injured parties should never attempt to minimize or downplay their specific injuries in an effort to be polite or personable. Additionally, simply agreeing with the DME doctor’s statements out of respect (or possibly fear) is never advisable. Assuming that, since you are filing a personal injury lawsuit and your injuries sustained during the accident are indeed legitimate, causing you pain and suffering, it’s incumbent upon you to describe what you are experiencing in detail to the defense’s DME doctor.
B) Having a witness — either someone who experienced the accident and can corroborate how it transpired, who viewed first-hand what injuries were sustained following the accident (and the impact those injuries had/continue to have on the injured), as well as a witness who viewed the injured individual’s condition prior and subsequent to receiving medical treatment — is always preferable, and can prove to be a huge asset to the case. Such a corroborating witness can be key to your case’s proceedings, should the DME findings be contested in court at a later date. Such a witness could be 1) an individual who was on the scene with you at the time of the accident, 2) a friend or relative who was with you immediately afterward when you were hospitalized and receiving medical care, or even 3) a medical professional other than your doctor, such as a nurse, who is familiar with your diagnosis, having cared for you in the hospital. Having such a corroborating witness (or witnesses) will be critical, should you decide to appeal a DME doctor’s opinion.
C) Retain copies of each and every document you sign throughout the course of your treatment and legal proceedings (always request these documents — be it from the hospital, the doctor, or opposing counsel — immediately after you ink your signature on the dotted line. This includes obtaining all available medical records. It is also advisable to make notes with each treatment received — chronicling in detail your experiences such as pain, degeneration of your condition, the extent of your injuries, etc.
Possibly Having to Challenge Your DME’s Findings:
If you ultimately wish to challenge the findings of your DME, as you are confident that they contradict the truth related to your sustained condition, you have options:
If you brought a corroborating witness to your DME, you should not only communicate what you believe to be unfair about the report to the insurer, but also stipulate that you have a witness to verify your viewpoint (both as it relates to the DME and the events viewed by the witness cited above). Additionally, you may want to consider forwarding your medical records to the defendant’s insurer, highlighting specific findings from your doctor that refute the DME’s findings. In such an instance, it is important that you emphasize how your medical records and doctor’s diagnisis are representative of a more thorough, comprehensive, and accurate screening, rather than merely a short, one-off DME. Some victims have even gone so far as to request a letter from their doctor, written directly to the insurer as a supporting declaration intended to refute and discredit the DME report.
Finally, and though this is listed last it is certainly not any less important, it could behoove you to research the relationship between the insurer arguing against your claim and the DME doctor, specifically how frequently they have worked together in the past, and what percentage of cases (if any) ultimately resulted in opinions stemming from the DME in favor of the victim.