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.