Defense Medical Examination
What is a Defense Medical Exam?
After you file a personal injury lawsuit, the defense gets to hire a doctor who will examine you and give an opinion on your injuries.
For example, if you broke your leg in a trucking accident, the lawyer for the trucking company will hire an orthopedist to examine your leg and look at your medical records. If the case goes to trial, the trucking company will bring that doctor to court and tell the jury the doctor’s opinions about the injury.
Do I have to go?
Yes. The New Jersey Rules of Court allow the defense to have a doctor examine you. The defense will then rely on its doctor’s opinions to defend the case. If you refuse to go to the defense exam, your case will get dismissed.
Who picks the doctor?
The defense lawyer and the defense insurance company choose the doctor who they want to examine you.
They keep a list of doctors who they use on a regular basis and who are used to testifying in front of a jury.
Why don’t they just ask my own doctor?
Insurance companies have a simple purpose in personal injury litigation: to pay as little as possible to you.
The easiest way for an insurance company to pay you less is by having a doctor tell a jury that you are not as injured as you say you are or that your injuries were caused by something else.
They are not getting that from the doctors who treated your injuries. That is why the insurance companies go back to their own doctors each time.
What should I expect at the defense examination?
A typical defense doctor will set aside certain days of the week to do litigation work.
When you arrive at the examination building, you will sign and in and will often be given a questionnaire. The questionnaire will probably include questions about how the crash happened and your injuries. Be careful filling this information out: the defense doctor will use it in the report.
Tip: Consider taking a photograph of the questionnaire after you complete it.
When you get called into the defense doctor’s office, the doctor will usually start asking questions about your history and your complaints. After that, the doctor will do a quick physical examination. Depending on the doctor, the physical examination might take only between 5 and 15 minutes.
Tip: Keep track of the time that the defense doctor actually spent doing a physical examination.
That all sounds fine… what is the big deal?
Compare that to the doctor who treats you for your injuries.
Your treating doctor will ask you questions, make suggestions on how to reduce your pain, recommend treatment, review your medical records with you, take actual measurements of your range of motion, etc.
Your treating doctor is looking for solutions. The defense doctor has a different goal.
In reports from defense doctors, we will sometimes see something like the following:
“Mr. Smith complained of back pain but had no problem sitting down or standing up in my office.”
“Mrs. Smith complained of difficulty walking but when I looked out the window, I saw her walking to her car without difficulty.”
“Mr. Jones complained of stiffness in his neck but had no difficulty when he dropped his keys on the floor.”
How can the defense doctor say that something else caused my injury?
The defense doctor is looking to emphasize some of the following: the accident didn’t cause your injuries; your injuries are not as bad as you say they are; the complaints are age-related; you’re exaggerating; the MRIs do not show an injury; or your injuries are pre-existing.
The defense doctor will be given your medical records. The defense doctor will dig through those records for any complaints in the past, e.g. the time you went to the doctor 10 years ago because you pulled your back. That may give the defense doctor an opening to say your injuries were already there before the crash.
Some defense doctors will argue that the surgery you got was not necessary. For example, the defense lawyer might choose a defense doctor who doesn’t believe in epidural injections if you underwent epidural injections. On the other hand, if you didn’t have epidural injections even though they were recommended, the defense lawyer might choose another defense doctor who will say that if you were really injured, you would have had the epidural injections.
I heard somebody call this an I.M.E. What is that?
The insurance companies and the defense lawyers try to call the examination by the defense doctor an Independent Medical Exam (.IM.E.).
How many defense doctors will I need to see?
That depends on your injuries. For example, if you are claiming a broken leg and a mild traumatic brain injury, the defense might want you examined by an orthopedist, a neurologist and/or a neuro-psychologist.
Can the defense doctor give me medical advice?
No. The defense doctor is not your doctor. There is no doctor-patient privilege. The examination is only for the litigation.
What time should I get there and what should I wear?
You should block out a few hours for the visit to the defense doctor.
Many of these offices are in the back of buildings or in other hard-to-find location. Be sure to arrive early and expect to spend time in the waiting room. You do not want to be in a rush getting to the appointment or leaving the appointment.
If you do not make the appointment, arrive late, or leave early, the defense doctor might not see you and will try and charge a cancellation fee.
Because the visit is related to a lawsuit, many people tend to dress more formally. You do not need to do that. You need to dress comfortably.
For example, if you no longer wear heels on a regular basis because of your back pain, do not wear heels to the defense doctor appointment because you think you need to dress formally. If you do, you are giving the defense doctor the ammunition the doctor needs to say you are exaggerating your injuries.
Are there any guidelines for the defendant doctor who examines me?
The American Board of Independent Medical Examiners lists the following guidelines on its website as to what the defense doctor should do during the exam:
- Introduce himself/herself to you;
- Tell you that he/she will use the information and write a report;
- Tell you who is asking for the exam;
- Tell you that he/she is not a treating doctor;
- Tell you the process involved with the exam;
- Provide you with privacy to change your clothes;
- Tell you the examination is over;
- Ask you if there is anything further you would like to say.
As you will see at your exam, the defense doctor will skip a lot of these steps.