WASHINGTON, D.C., February 23, 2013 ― If you have to file a lawsuit because an insurance company will not pay a reasonable amount for your harms and losses due to an automobile collision, you may have to let the insurance-retained doctor examine you.
The habit and custom of insurance-retained attorneys is to refer to this exam as an “IME,” which means independent medical exam. Unfortunately, there is nothing independent about it.
A good Plaintiff’s attorney will object to this characterization and insist that if the case goes before a jury, the defense attorney must refrain from using the term “independent.” It is therefore often called a Defense Exam.
The defense has the right to have a doctor examine you, and to review your medical records and history. This is fair. You certainly will have a doctor come to court on your behalf to testify about what happened to you. In all probability your doctor will provide opinions about the cause of your injuries – that they were caused by the collision – and about the nature and extent of your injuries.
It is both reasonable and fair that the defense should be in a position to counter your doctor’s comments. If you are exaggerating, that should be brought out and fairly used against you.
I had an unscrupulous client several years ago who got dental work from an equally unscrupulous dentist. Apparently he convinced the dentist his bill for the dental work could be paid for if the dentist would write a report saying his dental injury was caused by his auto accident six months ago. The dentist wrote the report. Of interest is that my soon to be ex-client had made no complaints at the hospital about facial or mouth trauma; none to his primary care doctor; and none to his treating orthopedist. I discharged this individual as my client because I will not represent people who try to play games and blatantly lie to me.
If the above case were to go to court and that client wanted the at-fault driver to pay for his root canal, it would be appropriate for the defense to bring an independent dentist to testify that the root canal and dental work were not related, and that the Defendant should not be responsible.
The problem with most defense medical exams is that many doctors who come to court for insurance companies are badly biased. The income they make from doing what is called medical-legal work is sometimes staggering, and they provide opinions that are based on their desire to continue to please the insurer that is paying them. If they routinely said the Plaintiff was injured the insurers would not use them.
Recently, a doctor answered questions at a deposition taken before the trial. Below are some of the questions and sworn-to answers. I have not provided the name or practice area of the doctor, the identity of the attorney asking the questions, nor the jurisdiction of this case. Read the following and decide for yourself if you think this doctor routinely provides a reasonable and fair challenge to a Plaintiff’s case, or if the cards are stacked against most Plaintiffs by a doctor whose only interest is taking sides and who is willing to say anything to advance the position of the defense.
Attorney’s Question: …you testified in (another) case in 1995, that 90 percent of the medical-legal consulting work you were doing was for the defense?
Doctor’s Answer: Again, I don’t remember that far back, but if that’s what I testified to, I assume that’s correct. It doesn’t sound incorrect.
Question: …between 1994 and 1996, you had more than doubled your (hospital) salary every year, so you made at least $100,000.00 from testifying in court?
Answer: That seems likely, yes.
Question: In1997, you made over $500,000.00 testifying and/or doing medical-legal consulting?
Answer: I don’t remember that far back, but if that’s what I testified to, then I assume that’s correct.
Q: In 1999, you made $721,140.00 doing medical-legal consulting?
A: It sounds like that’s what was indicated by the 1099’s that I produced, so I would assume so.
Q: In 2008, you made $928,000.00 in medical-legal consulting?
A: Yes.
Q: I haven’t looked at the records you produced for 2011. Are they approximately the same as 2010, $900,000.00 range?
A: Yeah, actually, I thought 2010 might have been a bit higher.
Q: Do you agree that the vast majority of cases where you testify in personal injury cases, your position is the plaintiff did not have an injury or did not have an injury related to the accident in question or as you’ve indicated a minute ago, or their injury is not as bad as they claim, they may have had an injury, but it’s resolved, correct?
A: Not necessarily fully resolved, or it might be an injury from the accident that’s different than the injury being claimed, yes.
Q: And more often than not, that is in direct contradiction to whatever the treating physicians have either testified to or have in their records, correct?
A: That’s true.
Onto another topic:
Q: Am I correct that your typical physical exam that you do on a patient when you’re doing a defense examination takes as little as five minutes and usually not more than ten minutes?
A: Yes, that’s true.
So, summing up, this “independent” doctor, receiving substantial income for over a decade as an insurance advocate, now earns almost $1 Million annually and testifies about 95 percent of the time that the Plaintiffs are not hurt, that if they are hurt it was not due to the accident, and if they were hurt from the accident, they were not hurt as badly as they claim.
My advice to you: If you find yourself in a defense doctor’s office for an examination following a lawsuit you filed, make sure your attorney has all of the information about the doctor’s history. Medical exams conducted by highly paid advocates are not independent and neither is what the doctor will later say. With the doctor’s history disclosed, their bias will be exposed and the weight of their opinion will be significantly reduced.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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