Is an "Independent Medical Examiner" in a Personal Injury Case Really Independent?
Quick: when you think about doctors, what’s the first word that comes to mind? Helper? Healer? As of this writing, we are in the thick of the coronavirus pandemic, so the first word that comes to mind when you think of doctors might even be “hero.”
Most doctors are, in some measure, helper, healer, and hero. In this country, we generally have a positive view of doctors, and we usually should. That favorable viewpoint creates a sort of “halo” around the profession: if you know nothing else about a person except that he or she is a doctor, your first impression of them will probably be a good one.
There are times, though, that people should exercise healthy skepticism about doctors: when they are testifying at trial on behalf of insurance companies as “independent medical examiners,” or IMEs.
What Does an IME Do in an Injury Case?
A person who has been injured and sues the person or entity that injured them is called the plaintiff. The party being sued is called the defendant. The defendant’s insurance company, which would have to pay the plaintiff if he or she wins the case, is usually involved in the defense.
In any lawsuit, the plaintiff and defendant engage in “discovery,” learning about the other side’s claims, evidence, and case. Depending on which court you are in discovery can include written questions called interrogatories, or interviews called depositions. In an injury case, discovery may also include an independent medical examination. In theory, the doctor performing this examination, unlike the plaintiff’s own doctor or a doctor suggested by a plaintiff’s attorney, is completely unbiased. After all, it’s right there in the name: independent.
If you are a plaintiff in a personal injury or medical malpractice case, you may be required to go through an “independent” medical examination. When you do, you will probably be inclined to think of the doctor as you have other doctors with whom you have worked in the past: someone who is interested in your health and is there to help you. The reality is probably somewhat different, however, and you should be prepared for it.
The IME is hired by the insurance company. The insurance company would prefer not to pay on your claim, or would prefer to pay as little as possible. So the doctor has a built-in incentive to identify “facts” that favor the insurance company, and testify to those at trial. This is not to say that IMES lie outright, but that they might highlight certain information, and de-emphasize other information that is less helpful to the defense. They are more accurately often called “Defense Medical Examiners” or a “DME” because these defense-hired examiners are far from “independent” when they put on the white coat.
Meanwhile, the IME is counting on your favorable idea of doctors, expecting that you will let down your guard and be forthcoming with information that could help the insurance company’s case—and damage yours.
How to Get Through an Independent Medical Examination
Remember that an independent medical examination isn’t a medical experience; it’s a legal one. The IME is not your doctor; he or she is not there to treat or cure you, but to gather information for a legal case.
As with a deposition, trial, or other legal matter, you should always be truthful during an independent medical examination. But you should not supply information that you are not required to, or get tricked into “clarifying” a response in a way that favors the insurance company.
Here are some tips for getting through an independent medical examination:
Remember that the IME is working for the insurance company.
The IME may look and act like a regular doctor who is there to help you, but you must remember that it is against their interests to help you or your case. Most insurance companies work with the same doctors over and over and over. The doctor is not just getting paid to do an independent medical examination in your case, but in many. If the doctor starts testifying in ways that are contrary to the insurance company’s interests, that source of income will dry up quickly. No matter how nice the doctor is, remember they are not on your side.
Be polite and pleasant.
It may make you angry to realize that this doctor, someone who is supposed to be healing people, may in fact be acting against patients’ interests. But acting hostile won’t help your case, and may harm it. Be polite and pleasant. You are going through a stressful time and are in pain, but if possible, avoid being overly emotional during this examination.
Be honest, accurate, and factual.
No matter what, it is essential that you be truthful in everything that you say to the IME. Don’t exaggerate symptoms or lie about how an injury happened. Lying, or even “shading the truth” could come back to hurt your case in the end, and it is just not ethical. Know your symptoms, when they started, and their severity, and be prepared to answer questions about them specifically and accurately.
Answer only what you are asked, and only if appropriate.
While it is important to be honest, it is not necessary to offer MORE information than is being asked for. Answer exactly the question asked, not what you think the examiner is getting at. Take a moment to repeat the question in your head before answering.
To prepare yourself, here’s an example: if you are asked, “Do you know what time it is?” your impulse may be to say, “Yes, it’s 2:30.” But go back and reread the question! It only asked if you KNEW what time it was—not the time itself. So take your time and answer carefully. While it’s not a criminal case, anything you say might be used against you.
The IME will be making an effort to appear friendly and non-threatening, and so may make conversation. He or she might, for instance, try to ask you about the circumstances under which you were injured. Remember that is not the IME’s job. He or she is supposed to be examining your medical condition only. Talk to your own attorney about how to politely decline to answer inappropriate questions.
If you have further questions about IMEs and their role in your case, we invite you to contact Huegli Fraser for a consultation.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.