Insurance Medical Examinations in Idaho Injury Litigation — Protect Yourself From An Unscrupulous IME Examiner

When you are a plaintiff in an injury lawsuit, the rules controlling the process often allow the  “defendant” to have a medical professional of their choice examine you.  This is a time when the worlds of law and medicine collide. We have found that clients are often surprised when such an examination is demanded.   This is not surprising because in their everyday lives people are used to seeing doctors of their choosing. Physicians who have the patient’s best interests at heart.  In contrast, in an injury case, it is the insurance company and their law firms that choose the examiner.  And, because of the way insurance companies think, if the hired examiner authors opinions that are not favorable to the company’s bottom line they will be far less likely to get hired again.  Thus, instead of the patient’s best interests, it often seems like these hired gun examiners have their own (and the insurance carrier’s) interests at heart.

The rules of court refer to these as independent medical examinations.  They are often not very independent.  Most lawyers who represent injured people call them Defense Medical Examinations or Insurance Medical Examinations.  This is because there is a certain stable of go-to physicians that the insurance companies and their hired defense lawyers regularly use and who get paid hundreds of thousands of dollars to offer opinions.

Nonetheless, in most injury cases, Idaho law give the defense the right to have a doctor of their choice examine you, at their expense.  The basic purpose of this examination is to check your current medical condition, reach an opinion of whether your injuries were caused by the incident at issue and reach some conclusions about your future medical course.   This also permits their examiner to provide opinions about the medical treatment that you have received up to the present time, as well as give the defendant ammunition to oppose your claim.   It is not at all unusual for the hired examiner to disagree with opinions your real doctor has expressed concerning your condition.

We tend to regularly get many of the same questions about the process and the examination procedure.

Do I Really Have To Go To This Examination?
In most cases you will be required to attend an IME sought by the defendant.  There are circumstances where this is not true, but generally all we can do is help with scheduling and setting some ground rules for the physician.

What is Going to Happen at the Examination?
At the examination, you will frequently receive paperwork to fill out.    You have to be careful about this because everything you write down is something they will try and figure out a way to use against you.  In the examination, the defendant’s doctor will ask you questions concerning your past medical history, your present injury, and how you are feeling now. The doctor will also physically examine you.  The more egregious and completely “sold-out” examiners will go through a detailed interview about the injury accident itself.  All of this is an effort to create contradictions between your statements to the physician, prior medical records and your deposition.   There are lots of understandable and innocent reasons why you might explain things differently in the different settings   The defense lawyer and the defense hired physician will nonetheless use such matters to attack your credibility.

The purpose of the examination is only to help the defendant in its defense of its case. The examination is not intended to provide you with medical treatment.

The physician is not your doctor.  He is hired paid for and cares about the insurance company and the lawyer who hired him.

Is there Some Way to Prepare for the Examination?

1. Before the examination, sit down and take time to think about your injuries and medical problems. Also, think about any prior condition that you may have had involving the same areas of your body for which you are presently claiming injury. Make a list of all  the problems you have with the part of your body that is injured. that can be pain, reduced range of motion, reduced strength, all sorts of things.    It is important that you give the defendant’s doctor a complete and accurate description of your injury and medical history.  You should not discuss with the doctor injuries that are not related to this case, unless you are specifically asked.
2. We will usually have a person attend the examination with you.  It can be a lawyer, a hired nurse or a staff member.  We often have them videotaped or tape recorded.  Sometimes we have you go to the examination with a friend spouse or family member.
   1. It is important that someone, in addition to yourself, be a witness to the events that occur in the doctor’s office.
   2. The person accompanying you should watch and take notes
   3. The person should also time the entire interaction between you and the hired examiner
3. Be on time for your examination
4. Be polite at all times with the doctor and his or her assistants.
5. When answering the hired examiner’s questions, only answer exactly what is asked and nothing more.You are not in there for a chat with the doctor and it is not helpful for you to give him information he doesn’t ask for.
   
6. We have learned that it is useful to think about your injuries in a very structured and methodical way.  The best structure in our experience is for you to start at the top of your head and describe and problems (injuries abrasions headaches etc);  Then on to your face, the sides of your head, the back of your head, then your neck, right should left shoulder, right upper arm, right elbow, wrist, hand left etc. etc. etc.  Be complete and detailed in your descriptions of your issues.  If you forget to mention something you will set yourself up for unnecessary problems later on.
7. Do not sign anything you don’t understand.
8. Do not exaggerate or fake your problems. Dont be stupid.  Defendant’s doctors have tests they use to detect exaggeration or faking.  If they decide you are doing it it creates even more problems.  Of course, at times they decide your are faking when you are 100% honest.  We can deal with that.  So do not assume that the doctor will know how badly you  hurt just by examining you. Do not feel ashamed or embarrassed to tell the doctor exactly how you feel.  Explain your situation to the examiner honestly and without embellishment.
9. The doctor and his staff will be watching you the entire time you are in the doctor’s office and possibly after you leave until you drive away. Therefore, it is important that you do not exaggerate or fake anything at any time.
10. If you have pain at the time of the examination, tell the examiner. Make sure the examiner understands what parts of your body are still giving you problems and what causes the problems. For example, “My low back aches when I sit for longer than one-half hour” or “My knee hurts when the weather is cold and or a storm is coming in.”
11. Do not take any documents, x-rays or reports or other items to the doctor unless your lawyer tells you to do so.
12. The examiner is not on your side, do not ask them give you any opinions about your injury or your case.
13. You are being examined by the examiner scheduled to see you. Do not agree to any other examinations.
14. You and your witness should take notes during the examination. As soon as the examination is over, jot down anything that you think is memorable.

These examinations are a source of great mischief.  Physicians who are regularly hired as examiners are comfortable with legal proceedings and courtroom testimony.  Ordinary treating physicians are more interested in treating patients and view the litigation process as a distraction or a headache.  This is unfortunate and certainly gives the insurance company a “leg up.”   In the end, however, by following the basic rules and above all being honest with your own medical providers as well as the hired examiner, we can help handle some of that imbalance.

If you have questions, call us for a free consultation. We help people all over Idaho.

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