If your client is actively in litigation for a personal injury claim, there is a high likelihood that at some point, he or she will have to submit to an “Independent Medical Examination” (IME), or as we like to call them, “Defense Medical Examination” (DME). Nothing about these examinations are independent, nor are the physicians conducting them. It is important to have a representative or client advocate accompany your client despite the magnitude of their injuries or their demeanor, but it is imperative to send an advocate with your client if he or she exhibits any of the following:
If your client displays any of the above characteristics or symptoms, they will be vulnerable to the examination of the defense physician, and it is in the best interest of your case and client to retain a trained client advocate to navigate them through the process, accompany them on the exam, and draft a report with detailed descriptions of exactly what took place on the date of the exam. Best of all, in March 2019, the First Department Appellate Division ruled in Markel v. Pure Power Boot Camp, Inc., that these observational reports are protected under the privileges pursuant to CPLR 3101(d)(2), so you do not have to share them with the defense, and if necessary, you can utilize the assigned client advocate as a rebuttal witness during trial.
Most patients are anxious and fearful to attend examinations of any specialty with their own physicians. One can only imagine the stress and nervousness each must endure when having to submit to an evaluation surrounding their litigation by a physician who is not only skeptical of their claims, but who also prostitutes themselves as defense whores to mitigate the patient’s damages for the insurance companies who pay them to provide the opinions they’re looking for.
Clients who exhibit the above traits or symptoms will be reassured by having someone accompany them on the exam and explain to them what to expect. Not only will your client be happy with you, the attorney, for putting them at ease through these intimidating exams, they will be more calm and collected to display a better appearance for the defense doctor, and they will be able to focus on providing the doctor with an accurate account of their injuries, residuals, and lifestyle changes, rather than clouding their minds with the anxiety of the unknown, or the worry that they will say the wrong things.
Additionally, the most crucial aspects attorneys take away from our confidential, attorney-client privileged observational reports are the recollections of all that was said between the doctor and patient, the tests administered, and the time stamps of the different portions of the exam. Do you really want to put the burden on your client to recall these accounts on their own when they display any of the above traits or symptoms? How accurate will their recollections be?
Many of these IME physicians will do whatever they can to provide the defense and insurance companies with the report opinions they are looking for. If your client displays a bad attitude, is difficult, offers more information than necessary, partakes in casual conversation about their personal lives, exaggerates their injuries, guesses during questioning, answers questions or performs tests they shouldn’t, or provides inaccurate statements due to memory or cognitive deficiencies, be assured that the doctor will include these misconstrued actions in his or her report, and their report will ultimately be harmful to your case moving forward.
Put your client in a position to be successful, and help minimize the damage of this intimidating experience by sending a client advocate with them on their next IME, as doing so will provide invaluable emotional support and significant content for rebuttals.
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