Every year there are more than 1 million injuries due to motor vehicle accidents in the United States. Many of these injuries are minor and go unreported. However, some injuries are serious enough to require extensive medical treatment, insurance and personal injury lawsuits.
If you are injured from a motor vehicle accident, and make a claim against the driver who caused the accident, his or her insurance company has the right to have you examined by a doctor of its choice. This is variously called an “independent”, “adverse” or “compulsory” medical examination. I refuse to use the word “independent” when referring to these exams, even though they are routinely referred to as IME’s. I call them “Insurance Medical Exams,” or better yet, DME‘s or “Defense Medical Exams.” The bottom line is that these doctors are hired for one purpose and one purpose only – to either deny or minimize a claim.
Whatever it’s called, the doctor who performs the exam will testify about your injuries for the insurance company. Make no mistake- the insurance company pays the doctor’s fee. The doctor is examining you not for the purpose of treatment, nor to help you find relief from your injuries. Rather, it is the doctor’s job to obtain information that will either allow the insurance company to terminate its obligation to pay your medical bills or to cast doubt on your claim of injury should your case go to trial.
This examination, and the doctor, are anything but independent. The insurance companies carefully and deliberately pick what doctors they want to perform specific evaluations. Most of these doctors have frequently done work for that insurance company and typically work for insurance companies exclusively. These doctors solicit business from the insurance companies by offering to do such ‘independent’ medical evaluations for them knowing that the insurance company will not refer patients to the doctor again unless the reports are favorable to the insurance company. This means that in order to stay in business, this ‘independent’ doctor, performing an ‘independent’ medical examination must be in the business of writing reports which negate injury claims, and serve only to bolster the insurance company’s denial of your medical benefits. If this ‘independent’ doctor fails to write reports in accordance with the insurance carrier’s specifications, then that doctor will not be referred any more cases to review from the insurance company.
Everything you do in the doctor’s office will be observed and recorded by the doctor and his staff. The doctor often incorporates simple activities, such as sitting on the examining table or taking your shirt off, as part of their mobility testing. So, while you might think the doctor never saw you move, s/he did observe you take off your jacket and pull your shirt over your head, demonstrating certain mobility techniques. All of those observations are part of the exam, although not as obvious to you as other parts of the physical exam itself. Be particularly aware of surveillance persons in the waiting room. One particular insurance company, in a letter addressed to the IME physician preceding the exam, asked the doctor to “watch” you in the waiting room and document things such as opening up doors, sitting waiting for the evaluation, walking within the facility, etc. Sometimes the IME physician may even drop something on purpose to see if you bend to pick it up. Remain observant and watchful of everything you do when entering the offices of an IME physician. Stay seated and don’t walk around.
Keep your appointment. Many insurance companies schedule exams through agencies that supply doctors who are willing to perform these exams for insurance companies. Your failure to attend the exam may result in your being responsible for payment of the doctor’s fee or the suspension of payment of your medical bills.
Honesty is the best policy. The best way to “connect” with the doctor is to be polite, cooperative, and above all, truthful. If you lie or fake an injury during the exam, the doctor will recognize your deceit and mention it prominently in the report. Try to appear open and forthright by providing helpful and straightforward answers. Also, attempt to make eye contact whenever possible. Although you need to pay attention to the doctor’s questions so you can answer them carefully, don’t appear nervous. After all, you know the answers to the questions, so try to stay relaxed.
Get organized! One way to strengthen your case and be more relaxed during the exam is to gather your thoughts so you can present your medical history in a logical and concise, but complete manner. Here are some topics you’ll cover:
Review the summary before your exam, but do not bring the summary with you.
Once you are called in for examination the IME doctor will typically conduct a patient interview to learn the history of the accident and medical condition, and then conduct a medical examination. At some point in time, the IME doctor is also likely to consult other medical records provided before your arrival in relation to the plaintiff’s (your) case. During this process, the IME doctor looks for a variety of factors about you, the injury victim, including:
Be honest and cooperative with the doctor.
Be pleasant. At the same time, you should not behave in such a fashion that the doctor can say you were laughing during the examination.
Be concerned. Be serious. Be polite. Give the doctor accurate, but brief, history on how your accident or injury occurred.
Give the doctor an accurate history of your job details and what you do in terms of lifting, bending, stooping, carrying, and walking.
If the doctor asks you about any previous injuries or illnesses you had before the present one, be honest and tell him the nature of any injuries you had, and whether you had surgery in connection with those previous injuries. On the other hand, do not volunteer information.
If the doctor asks if you have had any previous injury claims, you should say to him, “I’ve had previous injuries” (if that is true).
If you are totally disabled, explain to the doctor that if there was any way you could be back at work, you would be there.
Keep copies of any document you fill out or sign at the IME’s office. Don’t assume the IME will keep your questionnaire. Many don’t, and that may be the only proof you have that you told the doctor about some part of your medical history or injury. So keep your own copy.
This independent medical exam Doctor is going to ask you many questions in great detail. Keep in mind to answer his or her questions as simply as possible. Yes or no answers are the best you can give. Try not to elaborate on any subject. Never guess! If you are unsure or do not know the answer to a question, simply state “I do not know”. If the physician is asking questions about your doctor, or your doctor’s opinion, tell the exam doctor to look in the file that was provided to him or her, all that information should be in it. It is also ok, if you are uncomfortable, to tell the exam doctor that all of your injury information is also in the file. You can keep repeating this as much as needed. Independent medical examination physicians will try to get you to sing like a canary in hopes to get you to say something different.
Anytime this physician touches you or makes you do something that hurts tell him or her loudly! If you do not make it known that what is happening is causing you pain, the doctor will write in his or her report that the injured worker did not have any pain. Make your pain known!
Be aware that the doctor is sometimes performing the same test on you in more than one fashion and in more than one way. For example, the doctor may test your legs when you are sitting up and when you are lying down. This is the same test. Therefore, if you complain of pain inconsistently, the doctor is going to make note of it. Let the truth come out and you will obtain a more favorable report from the doctor.
Wear hand/arm braces and use any rehabilitative assistant devices like canes, walkers etc. at least two days before the exam, the day of, and two days after the exam. Be watchful and mindful you are likely to be under surveillance for these days as well. Look for strangers in your neighborhood or unfamiliar cars following you during that time period. If you are on good terms with your neighbors, ask them to alert you if they are contacted by anyone out of the ordinary. Insurance companies frequently use a ruse whereby they call you on the telephone and tell you they want to deliver some sort of mail or package. Be careful of strange phone calls.
During the course of your exam, without the doctor knowing it, keep track of the time the doctor spends with you and what is being done during each time period. For example:
2:00 p.m. Arrive at the doctor’s office.
2:15 p.m. Appointment time
2:30 p.m. Go to examining room
2:40 p.m. Doctor arrives in examining room.
3:00 p.m. Interview ends, told to undress, doctor leaves
3:10 p.m. Doctor returns and begins exam
3:15 p.m. Examination over
3:20 p.m. Leave clinic
Those patients get less sympathy and even less credibility for their complaints.
Once the exam is over and you have left the doctor’s office, prepare a written summary containing the following information in as much detail as possible:
The doctor will prepare a report for the insurance company describing his examination of you, along with his findings and opinions. It is extremely rare for the doctor to determine that you were injured in the accident or recommend any further treatment.
Try to remember what goes on during the exam in as much detail as possible, but don’t take notes in front of the doctor or bring a tape recorder into the exam — that could make it appear that you are more interested in getting money for your injuries than in improving your health. It is extremely important to note the exact amount of time the doctor spends actually examining you because the doctor will prepare a detailed report regarding your injuries despite having only spent a short time actually examining you.
As soon as you are home, sit down and write down every detail you can recall of your exam (i.e. time spent with a nurse or doctor, questions asked by the doctor and your answers, tests performed by the doctor, etc.). We understand that you cannot remember everything, but do the best you can. Nonetheless, your attorney is most effective when he/she has as much information as possible regarding your case. You must provide that information to the attorney. He/she is your advocate, not your private investigator. You are their eyes and ears, so give them as much information as possible- after all, the insurance carrier is doing the same thing to opposing counsel.
For information about this or any other aspect of personal injury law, please feel free to contact me directly at 516-358-6900 or rsj@CohenJaffe.com.