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Defense Medical Examination

Fairfax Injury Lawyer Brien Roche Addresses Defense Medical Examination

Brien Roche

Defense Exams

Most of us are familiar with getting a second medical opinion. However in a personal injury case 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 write a report. It will state what the doctor sees, what the cause of the injury is and the permanency of any injury.  The doctors who perform these exams 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.

Defense Medical Examination-Allowing the Exam

Rule 4:10 says that a defense medical examination may be allowed for good cause.  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 defense medical examination.  As a result 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.  In other words 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.  However 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 on a particular date and time. In addition the order should describe 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?

  • 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 the start and end time of the exam. They should note what questions are asked of the plaintiff and what responses are given. Also they should note 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.  Likewise 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.   In other words 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.
  • In neuropsychological exams it is not unusual to allow recording of the clinical interview and the mental status exam. Some courts will not allow recording of the comprehensive neuropsychological assessment.

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.
  • The recording should be 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 doctor treating a patient and a defense examiner conducting an exam.

Need for Recording

  • 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:
  1. The age or physical or mental condition of the plaintiff.
  2. 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.
  3. 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 exam will reduce any potential for conflict.

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.
  • In some cases it may be a good idea to have the plaintiff take with him any radiological studies and offer them to the doctor for review.  However 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.

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. In contrast the doctor is picked solely by the insurer.
  • No attorney will edit or review a draft of the report before filing.

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

Other Matters to Consider

  • Defense counsel will assist in arranging the discovery deposition of the examiner. Such deposition can be cancelled within two days of receiving the report.
  • Defense counsel will provide a copy of the examiners CV, fee schedule. The expert will provide any list of depositions and trial testimony maintained for court purposes.
  • Counsel will accept service of any discovery subpoenas addressed to the defense medical examiner.
  • Plaintiff’s counsel will have the right to call the examiner at trial.

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.  Bias can be shown by laying out the financial connection between the doctor and the insurer.  In addition 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 to discover the connection between the doctor and the insurer.

To show that connection you need to issue several subpoenas.  First of all subpoena the financial records of the carrier.  The subpoena should request any payments the carrier has made to this doctor for forensic work of any type.  Also it 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 the doctor for review of medical records and other materials related to the plaintiff and to this case.
2. Each document, record or computer record, including telephone notes, mentioning or regarding the plaintiff generated by the doctor 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. This should include but is not limited to 1099s, tax returns, bills and invoices of the doctor 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 the doctor 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. A list of all other cases in which, during the previous four years, where the doctor has 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 the doctor was designated by the plaintiff or defendant.

Fees in Other Cases

6. All documents recording the income or revenue generated by the doctor for medical records reviews, expert medical examinations, depositions, testimony and preparation for same for the last four years. This should include but not be limited to summaries, lists, 1099s, tax returns, bills and invoices.
7. Any computer or other records of any kind from the carrier and its related entities, related to the billing, charges, fees, and payments. This should include but not be limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of the doctor to review medical records or conduct medical examinations for the last four years.
8. All computer or other records of any kind from defense counsel and its related entities, related to the billing, charges, fees, and payments. This should include but not be limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of the doctor to review medical records or conduct medical examinations for the last four years.

Expert Fees

9. All schedules of fees for the doctor and his office in connection with providing expert medical/legal and/or forensic service(s) for the last four years.

General Fees

10. Any schedules of fees for physician services of the doctor or his office for his practice treating patients.

Lecture or Promotional Materials

11. Any lecture materials, documents or other materials you have provided to any group to which you have lectured within the last three years that refer or relate to:

A.  The medical conditions at issue in this case;

B.  Independent medical examinations;

C.  Causation for injuries claimed in personal injury cases and/or

D.  Soft tissue injuries.

12. Any advertising and/or promotional materials that reflect the services you have offered to any attorney, law office or insurance company.

Overcoming Objections

The defense may object to these subpoenas.  However 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.

Defense Medical Examination-Preparing the Client

Getting the client ready for the exam is critical.  Some basic points that need to be covered are:

  • Be on-time.
  • Beware that when entering and leaving the doctor’s office, you may be under observation.
  • Be pleasant.
  • Be truthful.  In particular if the doctor asks you how you are doing, tell the doctor what symptoms you have.  Don’t just say “fine”. However do not exaggerate.  Likewise do not understate what your symptoms are.
  • If during the exam the doctor does something that causes pain, then state that.
  • Review your medical history so that you are aware of what your symptoms are that may have since resolved.
  • Do not question the doctor about his role.
  • Don’t discuss how the event occurred unless it is necessary to describe the actual injury.
  • Do not fill out any forms other than an authorization to be examined.
  • Finally keep an accurate record as to when the examination begins and when it ends.

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

Defense Exams

Most of us are familiar with getting a second medical opinion. However in a personal injury case 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 write a report. It will state what the doctor sees, what the cause of the injury is and the permanency of any injury.  The doctors who perform these exams 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.

Defense Medical Examination-Allowing the Exam

Rule 4:10 says that a defense medical examination may be allowed for good cause.  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 defense medical examination.  As a result 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.  In other words 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.  However 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 on a particular date and time. In addition the order should describe 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?

  • 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 the start and end time of the exam. They should note what questions are asked of the plaintiff and what responses are given. Also they should note 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.  Likewise 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.   In other words 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.
  • In neuropsychological exams it is not unusual to allow recording of the clinical interview and the mental status exam. Some courts will not allow recording of the comprehensive neuropsychological assessment.

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.
  • The recording should be 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 doctor treating a patient and a defense examiner conducting an exam.

Need for Recording

  • 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:
  1. The age or physical or mental condition of the plaintiff.
  2. 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.
  3. 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 exam will reduce any potential for conflict.

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.
  • In some cases it may be a good idea to have the plaintiff take with him any radiological studies and offer them to the doctor for review.  However 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.

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. In contrast the doctor is picked solely by the insurer.
  • No attorney will edit or review a draft of the report before filing.

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

Other Matters to Consider

  • Defense counsel will assist in arranging the discovery deposition of the examiner. Such deposition can be cancelled within two days of receiving the report.
  • Defense counsel will provide a copy of the examiners CV, fee schedule. The expert will provide any list of depositions and trial testimony maintained for court purposes.
  • Counsel will accept service of any discovery subpoenas addressed to the defense medical examiner.
  • Plaintiff’s counsel will have the right to call the examiner at trial.

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.  Bias can be shown by laying out the financial connection between the doctor and the insurer.  In addition 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 to discover the connection between the doctor and the insurer.

To show that connection you need to issue several subpoenas.  First of all subpoena the financial records of the carrier.  The subpoena should request any payments the carrier has made to this doctor for forensic work of any type.  Also it 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 the doctor for review of medical records and other materials related to the plaintiff and to this case.
2. Each document, record or computer record, including telephone notes, mentioning or regarding the plaintiff generated by the doctor 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. This should include but is not limited to 1099s, tax returns, bills and invoices of the doctor 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 the doctor 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. A list of all other cases in which, during the previous four years, where the doctor has 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 the doctor was designated by the plaintiff or defendant.

Fees in Other Cases

6. All documents recording the income or revenue generated by the doctor for medical records reviews, expert medical examinations, depositions, testimony and preparation for same for the last four years. This should include but not be limited to summaries, lists, 1099s, tax returns, bills and invoices.
7. Any computer or other records of any kind from the carrier and its related entities, related to the billing, charges, fees, and payments. This should include but not be limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of the doctor to review medical records or conduct medical examinations for the last four years.
8. All computer or other records of any kind from defense counsel and its related entities, related to the billing, charges, fees, and payments. This should include but not be limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of the doctor to review medical records or conduct medical examinations for the last four years.

Expert Fees

9. All schedules of fees for the doctor and his office in connection with providing expert medical/legal and/or forensic service(s) for the last four years.

General Fees

10. Any schedules of fees for physician services of the doctor or his office for his practice treating patients.

Lecture or Promotional Materials

11. Any lecture materials, documents or other materials you have provided to any group to which you have lectured within the last three years that refer or relate to:

A.  The medical conditions at issue in this case;

B.  Independent medical examinations;

C.  Causation for injuries claimed in personal injury cases and/or

D.  Soft tissue injuries.

12. Any advertising and/or promotional materials that reflect the services you have offered to any attorney, law office or insurance company.

Overcoming Objections

The defense may object to these subpoenas.  However 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.

Defense Medical Examination-Preparing the Client

Getting the client ready for the exam is critical.  Some basic points that need to be covered are:

  • Be on-time.
  • Beware that when entering and leaving the doctor’s office, you may be under observation.
  • Be pleasant.
  • Be truthful.  In particular if the doctor asks you how you are doing, tell the doctor what symptoms you have.  Don’t just say “fine”. However do not exaggerate.  Likewise do not understate what your symptoms are.
  • If during the exam the doctor does something that causes pain, then state that.
  • Review your medical history so that you are aware of what your symptoms are that may have since resolved.
  • Do not question the doctor about his role.
  • Don’t discuss how the event occurred unless it is necessary to describe the actual injury.
  • Do not fill out any forms other than an authorization to be examined.
  • Finally keep an accurate record as to when the examination begins and when it ends.

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