“Independent” Medical Examination?
“Independent” Medical Examiners in Personal Injury Cases Are Typically Hired and Paid by the Defense/Insurance Company
Many of my personal injury clients are surprised to learn that in almost every civil lawsuit involving an injury, the plaintiff is required to undergo an examination by a doctor who is hired by the defense. These doctors are referred to as independent medical examiners (IME), which gives the impression they are in fact neutral and disinterested experts. Their title can give the impression these are doctors appointed by the court as part of a truth-seeking effort. Too often, nothing could be further from the reality. When a plaintiff is required to undergo an IME, the doctor is selected, hired, and paid by the insurance companies defending the case. By the time an injured plaintiff gets to this point in a lawsuit, we are usually opposing an insurance company who has refused to meet its obligations to pay the claim, and is now seeking a doctor to disagree with those who actually treated the patient.
Most doctors do essential, benevolent, and noble work. Most truly independent medical examiners, meaning those whose mission and goal remains care of the patient and unbiased, objective information gathering, provide a needed and helpful service. Unfortunately, our civil justice system does little to discourage the few medical providers who repeatedly offer biased opinions for the same insurance companies. Those doctors develop reputations among plaintiff’s lawyers as hired guns who obstruct access to justice in exchange for pay, and in doing so, thwart our system’s ability to produce fair outcomes for those who deserve them. Accordingly, although few doctors harm our justice system, the damage done by those who do is huge. Those doctors who build a business repeatedly providing biased reports to insurance companies are the focus of this blog post.
Defense Medical Examiners – Professional Witnesses
Insurance companies regularly hire doctors in hopes they will tell juries that injured claimants are faking their injuries, or to at least claim that they are exaggerating them. These insurance companies often assert in early filings with the court, well before their doctor conducts a medical examination, that the claimed injuries are fake, exaggerated, over-treated, or otherwise not legitimate. Later, these companies seek out doctors willing to support their early assertions. Many of these doctors do this work so often for the insurance defense that they come to depend on this work as an important source of income, and the system offers very little incentive to these doctors to offer impartial or unbiased opinions. Instead, these few problem doctors appear regularly opposing injured plaintiffs, and doing so is profitable for them.
Accordingly, the more accurate description of that particular set of professional witnesses for insurance companies would be defense medical examiners. If an injured plaintiff wants to be paid in the end, he or she should have no complaints about being examined by a doctor paid by the defense, right? Wrong. The problem lies in both the difficulty in getting justice generally, and the insurance industry’s leverage in that process.
Civil Justice Is Already Hard to Get
The process of seeking justice through a formal lawsuit is difficult enough. It is easy to view an injured plaintiff simply as someone who stands to gain financially from another’s mistake. However, that view ignores the reality that the person behind the lawsuit is a victim who was harmed by no fault of their own. Their goal is almost always to try to return to their pre-injury condition. The path back to that point is at least difficult, if not impossible.
By the time most plaintiffs reach the point of facing a defense doctor, they have already been through months of medical treatment and have often incurred huge expenses along the way for an injury that was never their fault in the first place. Injury plaintiffs have been harmed by someone who was acting negligently, and as a result, their life has been not only disrupted but made worse by pain and limitations. They have often missed work and lost money as a result. They have missed birthday parties and other social gatherings. Many plaintiffs have endured pain during the day, pain at night, and pain without breaks for months, if not years.
By this point in the process, these injury victims, who again, did nothing wrong and almost universally never wanted to have to sue anyone, have tried for months to resolve their case without having to file a lawsuit. They have considered insultingly low offers that wouldn’t have even covered their medical bills. They have thought long and hard about whether they want to spend the next year or two of their life pursuing a formal lawsuit. They have weighed the risk and necessity of paying their own doctors who treated them to write reports, participate in depositions, and show up at trial.
By the time these defense medical examinations occur, the injury plaintiff has likely already dug up and produced every medical record from every provider they have seen between the present day and going back to years before their injury. Those records include examinations and doctors whose goal was to diagnose and treat without any bias or obligation to anyone, and without concern for any pending lawsuit. The injured plaintiff has answered invasive questions under oath and has often endured accusations of dishonesty and exaggeration from the at-fault party’s insurance company. That is nearly always an insurance company that made its money promising to pay claims just like the one at issue. Sometimes even the at-fault party who caused the injury by their own negligence has joined in with the disparaging, dismissive, and uninformed assertions against the victim who they know little or nothing about.
For those injured by the negligence of others, the process of pursuing justice, fair compensation, and maybe even some accountability for those who caused the harm, is a long and mostly thankless task. Adding confrontation with a doctor intent on concluding that the patient is lying, all within the doctor’s office in an examination where the doctor holds all the power, is simply another obstacle on the long path to justice.
Jurors Should Not Be Told Defense Doctors Are “Independent”
Despite all the treatment and records and opinions of multiple doctors who actually treated the injured plaintiff, we require those plaintiffs to go see someone we know to be hired and paid by an interested party. Then we refer to this hired witness as an “independent” medical examiner, giving the jury the incorrect impression that this doctor is unbiased. This title even misleads jurors by asserting that this doctor is more objective than the doctors who actually treated the plaintiff.
The doctor’s office, for most of us, is a friendly place where we seek out help and care. I believe most doctors hold the relationship between caregiver and patient sacred. However, in the context of a civil lawsuit, these visits too often begin and end with anxiety, fear, and distrust. Doctors hired by the defense regularly engage in gamesmanship and trickery in attempts to elicit “admissions” from the injured plaintiff. Sometimes they leave the injured person in the waiting room for an hour past the appointment time, having the person observed the entire time for any “evidence” that they are not actually as injured as they claim to be. Then, if a patient gives up and leaves, the doctor may claim the patient failed to cooperate. The games often continue in the examination itself, sometimes including argumentative questioning, insinuations of dishonesty, examinations intended to “catch” exaggerators, and sometimes outright assertions. Often the assumptions behind these “gotcha” examinations are themselves flawed and based on bias. A truly injured patient who is actively suffering and as honest as he/she can possibly be will find themselves challenged to get anything resembling a fair shake at such an examination. Usually the best they can hope for is to deny a hostile doctor any opportunity to assert exaggeration. Acknowledgment of the full extent of an injury in these defense-purchased examinations is very unlikely.
Injured plaintiffs who are unprepared for a biased medical examination are in for a very unpleasant surprise, and the result can be serious harm to their case. That is true regardless of the injury. We are all accustomed to seeking help from doctors who want to help us get better. Undergoing an examination from a doctor who has built a business providing helpful reports to insurance companies is an entirely different experience. Are these examinations serving the purpose they are intended to serve, or are they just one more humiliation that must be endured to obtain full justice?
Limits on Professional Witnesses for Insurance Companies
Why do we rely upon these examinations as evidence in these cases? Why must we put injured plaintiffs through even more pain by placing them under the power of a doctor who is paid to undermine and deny injuries or claim they are exaggerated?
Perhaps a limitation on the number of times a particular doctor can testify for insurance companies would help alleviate the bias that builds with a dependence on the deep pockets the insurance defense enjoys. Insurance companies can offer a doctor an entire career if they like the doctor’s reports. What can a plaintiff offer? Payment for one case? Unfortunately some defense doctors have caught on, and those who approach any examination with their own financial future in mind do a disservice to our justice system, their own profession, and to the vast majority of doctors who are committed to providing care. Biased, professional witnesses camouflaged as healthcare providers should have no place in our civil justice system, and the changes needed to discourage their participation seem simple enough to endorse.
The current system has allowed defense-biased IMEs to obstruct access to justice for those who, without any blame for their injuries, must suffer an already long list of indignities and financial risks just to maintain a hope of someday being made whole. I urge lawmakers to set limits on the repeated use of the same doctors by insurance companies defending civil lawsuits.