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Independent medical exams remain a controversial issue between parties in personal injury and workers’ compensation cases.

After The New York Times published a series of articles at the end of March looking into independent medical exams in the state of New York, lawyers across the country began talking about the contentious issues surrounding IMEs.

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.”

But Ronald G. Stephenson, a partner at Bullivant Houser Bailey in Portland, Ore., who has practiced insurance defense for more than 30 years, said that the “frequent flyer” system of attorney-doctor relationships works both ways.

“Plaintiffs’ attorneys will steer their clients to certain doctors” looking for the response their case needs, he said. “That’s the game that is being played.”

Miller acknowledged that both sides of the bar have relationships with doctors.

“It’s foolish to deny that there are biases on both sides,” he said. But, he claimed, “the bias is more pronounced on the defense side.”

Plaintiffs’ attorneys can take advantage of that bias, he suggested, by making jurors aware of it.

“We have to continue to put the issue before the jury. They generally get it right,”

Miller said.

How to combat the IME

Miller takes a multi-pronged approach to fighting the IME.

First, he provides the defense attorney with a list of conditions that must be met before his client will meet with the doctor.

One of the most important conditions is that the doctor provides his or her financial information. Many doctors refuse to do so or withdraw from the case when asked to comply with such a request.

“It’s stunning to me how few people actually go to the trouble of getting a records subpoena” for a doctor’s financials, said Miller, especially because juries often respond to the idea that the IME doctor is a paid witness.

Analyzing the financials, “we’re looking for a couple different things, such as how much money the doctor makes from legal work, and specifically how much he or she makes from working with this particular [defense] lawyer or firm,” Miller explained.

It’s important to determine what percentage of the doctor’s overall income comes from medical work because even if the amount seems high, it could be a small part in the doctor’s total income, making him or her seem less influenced by it.

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.

Miller, who authors the Maryland Injury Lawyer blog, agreed.

“If I do see a doctor’s name that I don’t recognize, I will get on my listserv and ask other plaintiffs’ attorneys if they have seen him or her before,” he said. “Usually you’ll be able to find stuff pretty quickly to identify whether or not this is a professional defense witness.”

To deflect plaintiffs’ attempts to discredit an IME doctor, Stephenson said he tries to use a treating doctor in the local community.

He deals with the issue of bias by bringing it up during the IME doctor’s direct examination, asking questions about whether the doctor has testified for him before and how much money he makes for doing so.

To tape or not to tape

When the exam does take place, lawyers often fight over whether it can be recorded and whether the patient can bring someone (not his or her lawyer) to the exam.

Many states have general statutes that don’t speak to what is allowed at an exam, but in recent years, several state courts have ruled on a variety of these issues, particularly whether a patient may videotape or record audio of the exam.

Most recently, the Oklahoma Supreme Court ruled in Boswell v. Schultz 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.

Note: Ronald G. Stephenson is the author’s father.

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com

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