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Defense Medical Examination

Fairfax Injury Lawyer Brien Roche Addresses Defense Medical Examination

Brien Roche

Most of us are familiar with getting a second medical opinion. However in a personal injury case, whether it be in the Fairfax, Virginia area or elsewhere, a second opinion may be sought by the insurance company. This comes in the form of what is called a defense medical examination.

That second opinion is really not a second opinion. Instead the insurer for the other party is sending the injured plaintiff to a doctor chosen by the insurer. Furthermore that doctor will conduct an exam and write a report. It will state what the doctor sees, what the cause is and the permanency of any injury.  The doctors who perform these defense medical examinations are experienced doctors. They derive a great deal of income from the insurers for doing these exams. In addition they then testify at trial as to their findings. Therefore it is no big surprise that their findings are most often adverse to the plaintiff.

Allowing the Exam

Rule 4:10 says that an exam may be allowed for good cause shown.  It’s not difficult to show good cause.  If the plaintiff’s physical condition or mental condition is an issue, then the exam will probably be allowed.  The question may be, who will conduct it.

As indicated in Harris v. Kreutzer, 271 Va. 188 (2006), there may be a cause of action for the negligent performance of a Rule 4:10 examination.  As such a plaintiff who has been injured once by the defendant does have some reason to be wary of being injured a second time.  In Perkins v. Lillich, 23 Va. Cir. 218, 221 (Charlottesville, 1991), the court dealt with the issue of objecting to the examiner.  That objection may be based upon bias, prejudice or other causes.  If the objection is sustained, then the court may require each side to submit names to the court and the court will then select from that list.  The point to be made is that the plaintiff need not agree to the examiner chosen by the defense.

The Defense Medical Examination Is Not Independent

The insurers like to call these exams independent medical exams.  Of course they are about as independent as the claims adjuster is.

The defense medical exam can be an important part of the defense trial strategy. The doctors they choose are very savvy. They know what questions to ask of the plaintiff. Furthermore they know the potential soft spots in the plaintiff’s case.

These exams are most often governed by a court order. This order directs the plaintiff to appear at a particular office at a particular date and time for the exam. In addition the order also describes the nature of the exam and the scope of it. Call, or contact us for a free consult.

The Defense Medical Examination Order

There are several issues that should be addressed in that order:

Who Will Be Present?

  • Will anyone be allowed to be with the plaintiff during the course of the exam?  In most cases a spouse would be allowed to be present. This is especially so if the person being examined is a female or disabled in any way. Who is going to be present should be set forth in the order so that there is no dispute when the plaintiff appears for the exam.  Furthermore that person should bring a notebook. They should note of the start and end time of the exam, what questions are asked of the plaintiff, what responses are given, the scope of the exam and any comments made by the doctor.

Scope

  • The scope of the exam should be defined.  If it’s going to be a standard orthopedic exam then the order should state that.  If it’s going to be a standard neurological exam then the order should state that.
  • The scope of questioning by the examining doctor should be defined.   That is, the doctor should not be allowed to conduct another deposition of the plaintiff.
  • If there are any documents to be filled out by the plaintiff, those should be defined. In addition it should be made clear that the plaintiff will receive a copy of those before leaving the doctor’s office.

Recording

  • If the exam is going to be recorded in some fashion, that should be set forth in the order.  Many judges will allow audio taping of the exam with a transcript of that audio being given to opposing counsel.  Also if there is a request being made for videotaping, that should be cleared with the court ahead of time.
  • There are a host of reasons for allowing recording.  In Thorpe v. Poore, 83 Va. Cir. at 454,  the court not only allowed a recording but also allowed a third party to be present.  There are a number of factors that may bear on the need for a recording and/or presence of a third party:
  •   The age or physical or mental condition of the plaintiff.
  • Recording will aid all parties in preventing anyone from taking any words out of context.  This becomes especially important in light of the holding in Harris v. Kreutzer.
  • Recording will decrease the potential adversarial nature of the examination because there will be an unbiased record.  If the defense claims that the recording will make the examination more adversarial, that is all the more reason to have a recording.  Recording the examination will mitigate any potential for conflict.
  • The recording will be unobtrusive and practically unnoticeable.
  • If the defense claims that the recording will hamper the ability or willingness of the examiner, then argue that in fact the opposite is true.  The recording will promote a full and thorough exam wherein neither party will be fearful of what has happened.
  • The defense may claim that it is unfair because the defense did not have someone present when the plaintiff was treated by her doctor.  As indicated in Maldonado v. Union Pacific Railroad Company, 2011 U.S. Dist. Lexis 23507 (D.Kan. 2011), there is no equivalence between a healthcare provider treating a patient and a defense examiner conducting an exam.

What To Bring

  • The order should state what if anything the plaintiff is required to bring to the exam.  Ideally the plaintiff should not be required to bring anything.

Filing and References

  • The order should state when the doctor’s report will be filed with the court. It should state that a copy of the examiner’s notes and any file contents prepared as part of the exam be attached to the report.
  • It should state that the exam shall not be referred to as court-ordered or as being independent or agreed to. None of those things are technically correct.  The defendant has a right to such an exam. The doctor is not being picked by the court. Rather the doctor is picked solely by the insurer.

Those are some basic things that should be addressed as part of any such defense medical examination.

Defense Medical Examination-Follow the Money

The Virginia Supreme Court has opened the door to showing the connection between defense medical examiners and insurers.  In the case of Lombard v. Rohrbaugh, 262 Va. 484 (2001), the court dealt with this issue of bias.  The bias can be shown by laying out the financial connection between the doctor and the insurer.  The court expressly said the plaintiff is entitled to present evidence to the jury to show that potential bias of the doctor.  The only way to show that bias would be through discovery of the connection between the doctor and the insurer.

To show that connection you need to issue several subpoenas.  The first subpoena should be for the financial records of the liability carrier.  In addition the subpoena should request any payments the carrier has made to this doctor for forensic work of any type.  Also this should include invoices, billing records, payments, receipts and 1099s.

In addition you may want to request any documents showing any lectures that the doctor has given to agents or adjusters of the company.  Also ask for evidence as to any seminars or conferences where the doctor has appeared and made a presentation.

Subpoena To Doctor

The specific items that should be requested from the doctor are:

This Plaintiff

1. All computer or other records of any kind, including all correspondence, notes or memoranda related to the engagement of Dr. ______________ for review of medical records and other materials related to the plaintiff and to the case of _____________________.
2. Each document, record or computer record, including telephone notes, mentioning or regarding ___________________ generated by Dr. ____________ and/or his staff including, but not limited to, correspondence, drafts, notes, and nurses’ notes, and books since his engagement in the matter.
3. All computer or other records of any kind, related to the billing, charges, fees and payments including but not limited to 1099s, tax returns, bills and invoices as to Dr. _________________ and/or his office in connection with his review of records and other materials, preparation of any report, consultations with representatives of the retaining law firms or insurance carriers, and any other work performed in connection with this matter.

Other Plaintiffs or Claimants

4. Any and all lists prepared by Dr. ____________________ or his staff of litigation-related cases or workers’ compensation claims in which he has served as an expert hired by any insurance carrier, workers’ compensation carrier, or law firm to do medical records reviews or medical examinations of a plaintiff or claimant.
5. All documents recording the income or revenue generated by ____________or ____________________ for medical records reviews, expert medical examinations, depositions, testimony and preparation for same from 2009 through the present, including, but not limited to summaries, lists, 1099s, tax returns, bills and invoices.
6. A list of all other cases in which, during the previous four years, Dr. ______________testified as an expert at trial or by deposition, indicating the name of the case, court in which it was heard, the date of trial or deposition, and whether Dr. _______________ was designated by the plaintiff or defendant.
7. All computer or other records of any kind from (carrier)______________________ and its related entities, related to the billing, charges, fees, and payments including but not limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of Dr. ____________________ to review medical records or conduct medical examinations from 2008 to the present.
8. All computer or other records of any kind from Law Offices of __________________ and its related entities, related to the billing, charges, fees, and payments including but not limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of Dr. ___________________ to review medical records or conduct medical examinations from 2008 to the present.

Expert Fees

9. All schedules of fees for Dr. _____________________ and his office in connection with providing expert medical/legal and/or forensic service(s) since 2008.

General Fees

10. All schedules of fees for physician services of Dr. ______________  or his office for ________________ practice treating patients.

Overcoming Objections

The defense may object to these subpoenas.  To rebut any such objection, there are several points to be made:

  • Rule 4:1(b)(4) limits discovery of experts only with respect to facts known and opinions held by the expert.  The documents requested in the subpoena do not constitute facts known or opinions held by the expert.
  • Rule 4:1(b) allows the parties to obtain discovery as to the existence, description, nature, custody, condition and location of any books, documents or other tangible things.
  • The Lombard case does not limit discovery with regards to financial information or potential bias of the expert.  Indeed it says that bias may be disclosed.  The only way to disclose it is through full discovery of the financial connection.
  • Finally Sawyer v. Comerci, 264 Va. 68 (2002) held that the amount of money the defendant paid her expert in a prior case was relevant as to the issue of bias.  In Henning v. Thomas, 235 Va. 181 (1988) the court held that the defendants were entitled to attempt to persuade the jury that the plaintiff’s expert was a doctor for hire.

Cross-Examination of Defense Doctor

The cross-examination of the defense doctor should address several issues:

Independence

The lack of independence of the doctor can be pointed out through the following:

  • He was paid by the defense
  • He talked extensively with a defense lawyer before testifying
  • He wrote a report for the defense lawyer
  • The defense lawyer is the one who brought him to court

Send the Radiological Studies

It may be a good idea to have the plaintiff take with him any radiological studies and offer them to the doctor for review.  The plaintiff should always leave the doctor’s office with those same studies.  If the doctor chooses not to review the studies, then that can be brought out on cross-examination.

Aggravation of Pre-Existing Condition
See the proposed cross dealing with degenerative joint disease.
Testing the Strength of the opinion
To test how strong the opinion is ask:

  • Can the witness state the opinion with 100% certainty
  • If not then why not
  • Ask how they handle this in their own practice
  • Call or contact us for a free consult. Also for more information see the personal injury pages on this site. In addition see Wikipedia.

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Contact Us For A Free Consultation

Defense Medical Examination

Fairfax Injury Lawyer Brien Roche Addresses Defense Medical Examination

Brien Roche

Most of us are familiar with getting a second medical opinion. However in a personal injury case, whether it be in the Fairfax, Virginia area or elsewhere, a second opinion may be sought by the insurance company. This comes in the form of what is called a defense medical examination.

That second opinion is really not a second opinion. Instead the insurer for the other party is sending the injured plaintiff to a doctor chosen by the insurer. Furthermore that doctor will conduct an exam and write a report. It will state what the doctor sees, what the cause is and the permanency of any injury.  The doctors who perform these defense medical examinations are experienced doctors. They derive a great deal of income from the insurers for doing these exams. In addition they then testify at trial as to their findings. Therefore it is no big surprise that their findings are most often adverse to the plaintiff.

Allowing the Exam

Rule 4:10 says that an exam may be allowed for good cause shown.  It’s not difficult to show good cause.  If the plaintiff’s physical condition or mental condition is an issue, then the exam will probably be allowed.  The question may be, who will conduct it.

As indicated in Harris v. Kreutzer, 271 Va. 188 (2006), there may be a cause of action for the negligent performance of a Rule 4:10 examination.  As such a plaintiff who has been injured once by the defendant does have some reason to be wary of being injured a second time.  In Perkins v. Lillich, 23 Va. Cir. 218, 221 (Charlottesville, 1991), the court dealt with the issue of objecting to the examiner.  That objection may be based upon bias, prejudice or other causes.  If the objection is sustained, then the court may require each side to submit names to the court and the court will then select from that list.  The point to be made is that the plaintiff need not agree to the examiner chosen by the defense.

The Defense Medical Examination Is Not Independent

The insurers like to call these exams independent medical exams.  Of course they are about as independent as the claims adjuster is.

The defense medical exam can be an important part of the defense trial strategy. The doctors they choose are very savvy. They know what questions to ask of the plaintiff. Furthermore they know the potential soft spots in the plaintiff’s case.

These exams are most often governed by a court order. This order directs the plaintiff to appear at a particular office at a particular date and time for the exam. In addition the order also describes the nature of the exam and the scope of it. Call, or contact us for a free consult.

The Defense Medical Examination Order

There are several issues that should be addressed in that order:

Who Will Be Present?

  • Will anyone be allowed to be with the plaintiff during the course of the exam?  In most cases a spouse would be allowed to be present. This is especially so if the person being examined is a female or disabled in any way. Who is going to be present should be set forth in the order so that there is no dispute when the plaintiff appears for the exam.  Furthermore that person should bring a notebook. They should note of the start and end time of the exam, what questions are asked of the plaintiff, what responses are given, the scope of the exam and any comments made by the doctor.

Scope

  • The scope of the exam should be defined.  If it’s going to be a standard orthopedic exam then the order should state that.  If it’s going to be a standard neurological exam then the order should state that.
  • The scope of questioning by the examining doctor should be defined.   That is, the doctor should not be allowed to conduct another deposition of the plaintiff.
  • If there are any documents to be filled out by the plaintiff, those should be defined. In addition it should be made clear that the plaintiff will receive a copy of those before leaving the doctor’s office.

Recording

  • If the exam is going to be recorded in some fashion, that should be set forth in the order.  Many judges will allow audio taping of the exam with a transcript of that audio being given to opposing counsel.  Also if there is a request being made for videotaping, that should be cleared with the court ahead of time.
  • There are a host of reasons for allowing recording.  In Thorpe v. Poore, 83 Va. Cir. at 454,  the court not only allowed a recording but also allowed a third party to be present.  There are a number of factors that may bear on the need for a recording and/or presence of a third party:
  •   The age or physical or mental condition of the plaintiff.
  • Recording will aid all parties in preventing anyone from taking any words out of context.  This becomes especially important in light of the holding in Harris v. Kreutzer.
  • Recording will decrease the potential adversarial nature of the examination because there will be an unbiased record.  If the defense claims that the recording will make the examination more adversarial, that is all the more reason to have a recording.  Recording the examination will mitigate any potential for conflict.
  • The recording will be unobtrusive and practically unnoticeable.
  • If the defense claims that the recording will hamper the ability or willingness of the examiner, then argue that in fact the opposite is true.  The recording will promote a full and thorough exam wherein neither party will be fearful of what has happened.
  • The defense may claim that it is unfair because the defense did not have someone present when the plaintiff was treated by her doctor.  As indicated in Maldonado v. Union Pacific Railroad Company, 2011 U.S. Dist. Lexis 23507 (D.Kan. 2011), there is no equivalence between a healthcare provider treating a patient and a defense examiner conducting an exam.

What To Bring

  • The order should state what if anything the plaintiff is required to bring to the exam.  Ideally the plaintiff should not be required to bring anything.

Filing and References

  • The order should state when the doctor’s report will be filed with the court. It should state that a copy of the examiner’s notes and any file contents prepared as part of the exam be attached to the report.
  • It should state that the exam shall not be referred to as court-ordered or as being independent or agreed to. None of those things are technically correct.  The defendant has a right to such an exam. The doctor is not being picked by the court. Rather the doctor is picked solely by the insurer.

Those are some basic things that should be addressed as part of any such defense medical examination.

Defense Medical Examination-Follow the Money

The Virginia Supreme Court has opened the door to showing the connection between defense medical examiners and insurers.  In the case of Lombard v. Rohrbaugh, 262 Va. 484 (2001), the court dealt with this issue of bias.  The bias can be shown by laying out the financial connection between the doctor and the insurer.  The court expressly said the plaintiff is entitled to present evidence to the jury to show that potential bias of the doctor.  The only way to show that bias would be through discovery of the connection between the doctor and the insurer.

To show that connection you need to issue several subpoenas.  The first subpoena should be for the financial records of the liability carrier.  In addition the subpoena should request any payments the carrier has made to this doctor for forensic work of any type.  Also this should include invoices, billing records, payments, receipts and 1099s.

In addition you may want to request any documents showing any lectures that the doctor has given to agents or adjusters of the company.  Also ask for evidence as to any seminars or conferences where the doctor has appeared and made a presentation.

Subpoena To Doctor

The specific items that should be requested from the doctor are:

This Plaintiff

1. All computer or other records of any kind, including all correspondence, notes or memoranda related to the engagement of Dr. ______________ for review of medical records and other materials related to the plaintiff and to the case of _____________________.
2. Each document, record or computer record, including telephone notes, mentioning or regarding ___________________ generated by Dr. ____________ and/or his staff including, but not limited to, correspondence, drafts, notes, and nurses’ notes, and books since his engagement in the matter.
3. All computer or other records of any kind, related to the billing, charges, fees and payments including but not limited to 1099s, tax returns, bills and invoices as to Dr. _________________ and/or his office in connection with his review of records and other materials, preparation of any report, consultations with representatives of the retaining law firms or insurance carriers, and any other work performed in connection with this matter.

Other Plaintiffs or Claimants

4. Any and all lists prepared by Dr. ____________________ or his staff of litigation-related cases or workers’ compensation claims in which he has served as an expert hired by any insurance carrier, workers’ compensation carrier, or law firm to do medical records reviews or medical examinations of a plaintiff or claimant.
5. All documents recording the income or revenue generated by ____________or ____________________ for medical records reviews, expert medical examinations, depositions, testimony and preparation for same from 2009 through the present, including, but not limited to summaries, lists, 1099s, tax returns, bills and invoices.
6. A list of all other cases in which, during the previous four years, Dr. ______________testified as an expert at trial or by deposition, indicating the name of the case, court in which it was heard, the date of trial or deposition, and whether Dr. _______________ was designated by the plaintiff or defendant.
7. All computer or other records of any kind from (carrier)______________________ and its related entities, related to the billing, charges, fees, and payments including but not limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of Dr. ____________________ to review medical records or conduct medical examinations from 2008 to the present.
8. All computer or other records of any kind from Law Offices of __________________ and its related entities, related to the billing, charges, fees, and payments including but not limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of Dr. ___________________ to review medical records or conduct medical examinations from 2008 to the present.

Expert Fees

9. All schedules of fees for Dr. _____________________ and his office in connection with providing expert medical/legal and/or forensic service(s) since 2008.

General Fees

10. All schedules of fees for physician services of Dr. ______________  or his office for ________________ practice treating patients.

Overcoming Objections

The defense may object to these subpoenas.  To rebut any such objection, there are several points to be made:

  • Rule 4:1(b)(4) limits discovery of experts only with respect to facts known and opinions held by the expert.  The documents requested in the subpoena do not constitute facts known or opinions held by the expert.
  • Rule 4:1(b) allows the parties to obtain discovery as to the existence, description, nature, custody, condition and location of any books, documents or other tangible things.
  • The Lombard case does not limit discovery with regards to financial information or potential bias of the expert.  Indeed it says that bias may be disclosed.  The only way to disclose it is through full discovery of the financial connection.
  • Finally Sawyer v. Comerci, 264 Va. 68 (2002) held that the amount of money the defendant paid her expert in a prior case was relevant as to the issue of bias.  In Henning v. Thomas, 235 Va. 181 (1988) the court held that the defendants were entitled to attempt to persuade the jury that the plaintiff’s expert was a doctor for hire.

Cross-Examination of Defense Doctor

The cross-examination of the defense doctor should address several issues:

Independence

The lack of independence of the doctor can be pointed out through the following:

  • He was paid by the defense
  • He talked extensively with a defense lawyer before testifying
  • He wrote a report for the defense lawyer
  • The defense lawyer is the one who brought him to court

Send the Radiological Studies

It may be a good idea to have the plaintiff take with him any radiological studies and offer them to the doctor for review.  The plaintiff should always leave the doctor’s office with those same studies.  If the doctor chooses not to review the studies, then that can be brought out on cross-examination.

Aggravation of Pre-Existing Condition
See the proposed cross dealing with degenerative joint disease.
Testing the Strength of the opinion
To test how strong the opinion is ask:

  • Can the witness state the opinion with 100% certainty
  • If not then why not
  • Ask how they handle this in their own practice
  • Call or contact us for a free consult. Also for more information see the personal injury pages on this site. In addition see Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation