Today’s issue of LawyersUSA includes an article by Corey Stephenson quotes me on defense medical exams (which are otherwise jokingly referred to as "independent" medical exams). Here are a few excepts from the longer article.
One major issue is that "there are only so many doctors [who do IMEs] out there and we tend to see the same folks over and over again," said Ronald V. Miller, a partner at the Law Offices of Miller & Zois in Baltimore, Md. who focuses his plaintiffs’ work on serious motor vehicle accidents, products liability and medical malpractice cases.
Kenneth L. Shigley, a partner at Chambers, Aholt & Rickard in Atlanta, agreed. He refers to the exams as DMEs, or "defense medical exams," on his blog, the Atlanta Injury Law and Civil Litigation blog. "In my experience, insurance companies and defense lawyers always want to use a doctor whose view of things is pretty reliable and predictable as pro-defense," he said. "There are some doctors who make it their main source of income to do these exams and who are notorious in the area."
Plaintiffs’ attorneys should also do their homework on the doctor’s prior case experience.Shigley said he has sometimes found an IME doctor listed as a member of a defense organization or as having a connection to a defense firm, but "most of them are a little more subtle than that." However, if "you are networked within the community, you can get prior depositions of a doctor [from other plaintiffs’ attorneys] and examine the doctor with a stack of 20 to 30 prior depos," said Shigley, who works primarily on truck, bus and other motor vehicle cases.
Most recently, the Oklahoma Supreme Court ruled in Boswell v. Schultz [case I gave the reporter, 2007 WL 4246290 (Okla. 2007)] that a party to a lawsuit who is required to submit to a medical examination has the right to videotape the exam. The decision also details state statutes and case law from around the country. Miller said there are pros and cons to videotaping exams. Even though a doctor might typically perform a cursory exam, if a camera is on, he or she often becomes more avuncular and spends more time with the patient – something that will resonate with juries, Miller said. Shigley said he’s had mixed success with videotaped exams, but where a doctor has refused to be taped, he has introduced that fact at trial.
One point I made in the interview is that most defense medical exam doctors refuse to do the exam if there is an observer or if it to be taped.
The Boswell v. Schultz case in Oklahoma is a virtually encyclopedic analysis of the issue of recording of these adversarial medical exams, concluding that the person being examined has a right to have it recorded. A key quote from the case:
The obvious counterpoint of allowing a "full investigation" would be to make certain that the injured party has an accurate and complete record of the proceeding, and to allow the party undergoing an examination to have reliable proof that the examiner is unbiased and not merely a shill for the opposing party. Allowing an electronic recording would expose the true facts and strike a balance to prevent eitehr a false claim or a cursory exam.