Why is it called an “Independent” Medical Examination?
An “independent” medical examination might otherwise be called a Defense Medical Examination. This is because the defense lawyer (or insurance company) chooses the physician whom the injury party must visit for a on-time examination. The one-time visit is not for medical treatment or even diagnosis. Rather, it is for the defense chosen doctor to provide an allegedly “independent” opinion about the cause of the injured party’s complaints and reasonableness of the medical treatment the injured party has received. It is called “independent” medical examination by the Colorado Legislature, but in practice, it is more appropriately named defense medical examination.
Defense lawyers and insurance companies use the same doctors over and over. These doctors develop a reputation and track record as one-sided, biased witnesses who see their job as an advocate for the defense. They write reports designed to minimize the plaintiff’s injuries and minimize the need for treatment. Some even accuse the plaintiff of faking or exaggerating pain complaints.
To better understand the industry of “independent medical examination” doctors, here is a story of “caught on tape”, where testimony under oath of an independent medical examiner doctor was repeatedly contradicted by the audiotape that the injured party patient took of what she actually said at the exam. While not all “independent” medical examination doctors are this extreme, many will take statements out of context or cherry pick only certain pieces of information when forming a conclusion that is helpful for the defense – minimize the injury and minimize the need for treatment.
What is the process to get a Defense Medical Examination?
The defense lawyer or the insurance company requests through your lawyer that you attend the independent medical examination. The defense provides the physician with your past medical records and then the doctor sees you for a one-time visit. The doctor asks you questions and performs a medical examination. The doctor, paid for by the defense or insurance company, then writes a report to the defense lawyer or the insurance company and that report is shared with your lawyer.
Is the Defense Medical Doctor my doctor? Can he or she run tests?
No, to both questions. There is no physician/patient privilege between you and the defense medical doctor. While the doctor may be polite and kind, he or she is not “your doctor”. You are not the defense medical doctor’s patient and he or she cannot order any tests.
Who is the Defense Medical Doctor? Do they have to be in the same specialty as my treating doctor?
Your lawyer will likely be able to tell you more about the defense doctor than just the doctor’s name. You can also run a Google search as with any healthcare provider.
No, the defense “independent” medical examination doctor does not have to be in the same specialty as your treating healthcare providers. This is particularly true with pain physicians and chiropractors. Insurance companies do not “like” chronic pain because chronic pain costs money. Remember, the goal of insurance companies and defense lawyers is to minimize the injury and minimize the need for treatment. Pain doctors and chiropractors often treat chronic pain. Insurance companies and defense lawyers frequently try to discredit pain doctors and chiropractors by hiring defense orthopedists to say “it was a minor soft tissue injury that healed” and also “the treatment rendered was not necessary.”
Lastly, only see the doctor whom your lawyer has told you to see. If anyone suggests that you see another doctor, politely explain that your lawyer told you to only see the doctor who was assigned to your case.
What is the Medical Examination like?
As with communications to all healthcare providers, it is crucial to answer all questions truthfully and accurately. The defense’s doctor will generally ask for a medical history and then perform a physical exam.
Many doctors take a written medical history, asking an injured party to fill out paperwork. Most will also ask a lot of questions about how the injury occurred. You should review all your past statements about how you were injured prior to meeting a defense doctor. You will also be asked about your past medical history, which includes prior to when you were injured and all of your treatment since your injury.
A physical exam is where the defense doctor places pressure or resistance on various parts of the body to determine if the patient experiences pain. Many defense medical exam doctors spend only a short amount of time with a patient. The defense doctor is evaluating everything about you, including how you move about the examining room, how you get on and off the table, and your demeanor. Some even watch patient’s walk to the vehicles to see if they ambulate differently from when they are in the examining room. Others ask their staff to keep an eye on you. It’s important to be polite to everyone you encounter and, of course, always answer questions truthfully. Remember, don’t exaggerate.
How do I prepare for the“Independent”Medical Examination?
Talk with your lawyer.
Demeanor matters. Despite your justified indignation about the realities of the defense examination medical industry, do you want the doctor’s report to read “polite, respectful injured person” or “angry, defensive” injured person. If you are comfortable, then address the doctor with “yes sir” and “no ma’am”. Demeanor matters.
Consistency matters. Everyone has fallen victim to “Oops, I forgot to tell the doctor about XYZ” when I was there. It is critical to write down a list of your pain complaints and when they began. The doctor will have your past medical records about your pain complaints and when they started. If your oral pain complaints or timeline regarding on-set of pain don’t match what’s in your medical records, then you create defense opportunities to ding your credibility. Your lawyer should have your medical records for you to review. Consistency matters.
Details matter. What about your daily routine causes you pain? Think through the details. What causes pain and when?
- Body positions when sleeping?
- Your morning routine from getting out of bed to bathing and dressing?
- Caring for children?
- Commuting challenges? Sitting too long?
- Work challenges? What at work causes pain? How often are you required to do the activity that causes pain? Can and do you try to modify how you do the activity?
- Family challenges? What have you not been able to do with your family? What have you had to modify? How has your mood been affected?
The list is virtually endless because every person’s injury and pain is unique. Talk with your lawyer. Details matter.
Accuracy matters. Defense doctors hang their hats on a patient’s failure to disclose a prior injury or prior pain complaint to the same body part. It is critical to be accurate about prior pain. When did it occur, how and why did it occur, how long, how intense? A patient’s failure to disclose accurate information about the patient’s medical history opens the patient/injured party up to impeachment, which is the action of calling into questions an injured party’s integrity and validity about the his or her current pain complaints. Accuracy matters.
How do I get to the location of the “Independent” Medical Examination office?
Your lawyer will provide you with the address and directions. You will need to make transportation arrangements. Talk with your attorney if the location is far from where you live.
What should I do the day of the exam?
Be early. It is wise to arrive at least 30 minutes early to your appointment. It is natural, when we are rushing because we are running late or in a hurry we get nervous. To the defense doctor, nervousness often translates to “what is the patient trying to hide?” Getting to the appointment early allows you to practice the next point.
Be polite. Be polite to all the staff and the doctor.
Be calm. Peaceful observance that you know you have done everything you can to prepare. Stay calm and remember that you know what happened to you. Be patient with yourself and the doctor and take the time necessary to explain. Take note of the exact time your exam starts and ends and whether the defense doctor stays with you or walks out the room. If you feel you are not being given enough time to explain, you may politely ask for more time, but only if you are truly feeling shortchanged.
How long will I be there?
It depends. You will need to talk with your lawyer about the specifics of the type of exam you are undergoing. Also, remember, just as with many medical practices, you may be waiting beyond your scheduled appointment time because of over-scheduling or emergent patients by the doctor. Don’t lose your cool. We’ve all been there and it’s easy to get frustrated, but it is far better to remain calm.
Can I have a friend or family member with me in the exam room?
This is something to discuss with your lawyer well in advance of your examination. A judge generally must approve a witness to attend. However, if your injuries are very severe, the defense lawyer will often agree to allow someone to be with you. There may also be an opportunity to have a nurse, hired by your lawyer, with you under certain circumstances.
What should I expect when the doctor enters the room?
The defense doctor will ask you a series of questions. Feel confident that you have prepared and your appointment will go smoothly. Give complete and thorough responses to the doctor’s questions. He has all of your prior medical records and history. Don’t hide anything. You know your injuries, don’t downplay your pain, but don’t exaggerate. If you lie, the doctor will sense it and use it against you in his report. Lying will hurt your case. Be honest.
When describing your injuries, remember your preparation. What are your daily activities which causes you pain? What positions causes you pain? That is what you describe. Be as detailed as possible. If you don’t understand a question, ask for clarification. Remember to be polite and sincere throughout.
What should I expect after the exam?
Call your lawyer to discuss what happened at your exam. Send an email with notes of what you remember. You will not return to the defense doctor. The defense doctor will prepare a report that your lawyer will receive.
How can you mess up your defense medical exam?
- Exaggerating your problems. The defense doctor is looking for ways to claim that your injury is not as bad as you have claimed. If you exaggerate any of your pain or disabilities, the defense can claim that you have exaggerated all of it, and this could lessen your credibility.
- Mentioning anything you’ve never told any other doctors. If you have never told another doctor and you bring up new information, the defense doctor will speculate as to why you didn’t mention it before. Be consistent. It’s key.
- Denying previously documented injuries. The defense doctor will have reviewed your prior medical records. Hiding, lying, or even “forgetting” a previous injury gives the defense doctor ammunition to question your truthfulness about not just the old injury but the injury but your current injury.
- Being inconsistent about how the accident occurred. While the defense doctor may seem nice, he has been hired to expose any inconsistencies about your case. That includes how you describe that the accident happened. Be consistent.