How To Beat An Independent Medical Exam

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September 17, 2014
Edward Smith

Father of Medicine

2000 years ago, Hippocrates, the father of medicine, coined an adage that for millennium medical doctors have adhered to: “First, do no harm.” By overwhelming numbers, most individuals called to medicine have a deep desire to comfort, help and heal.

Insurance Companies’ Deception

Unfortunately, as personal injury lawyers who represent injured parties know, most insurance company doctors have forgotten or have never learned the above. Over the past 20 years, insurance companies have gone to incredible lengths to, shame and/or defame personal injury claimants.

One of the primary ways they to defeat personal injury claims is by hiring “independent medical examiners” to review the injured parties records, examine him or her in their office, and then carefully and systemically attempt to destroy the injured party’s case. Instead of “do no harm,” these doctors have as their motto, “follow the money.”

Independent Medical Examination

Before I explain further, I should first discuss the misnomer “Independent Medical Examination.” The medical examination is allowed pursuant to California Code of Civil Procedure Section 2032.

Although insurance lawyers refer to it as an “independent” examination, it is anything but. By law, an insurance company is allowed to schedule one medical examination without a court order in every injury case. In practice, insurers schedule such an examination in 8 to 10% of personal injury cases, primarily where they suspect the damages awarded by a jury will likely exceed $50,000.00. Whenever such examinations are done, the marching orders given insurance doctors are plain: “Destroy the man or woman’s case – money is no object.”

I have seen thousands of such examinations performed in my career, and every one of them has been infused with duplicity, bias and occasionally fraud. The sole purpose of these medical examinations is to save insurance companies money by deliberately trying to undermine the injured parties case.

Who Does the Examination and Why?

By California Codes, only a medical doctor with 5 years experience may perform a so-called “Independent Medical Examination.” In practice, the doctors who do such examinations, do hundreds of them yearly. They review medical records, examine the injured party and often take home high six-figure or even seven-figure incomes each year for their “independent” work on behalf of insurers.

Needless to say, whoever pays the paper the shots and an overwhelming number of reports from these doctors claim either that there was no injury, or that the injured party is exaggerating. They often also claim that the injury wasn’t the result of an accident but was the result of some pre-existing condition that has nothing to do with the accident. Often, these doctors are well trained and take extensive courses on how to hurt or destroy Plaintiff’s (the injured parties) claims.

When is the Examination Done?

The insurance examination is typically scheduled some 6-18 months after the injured party’s lawsuit is filed. The examination can be scheduled without a court order, and the injured party must attend. The exam is usually scheduled for the doctor’s office which sometimes can be over 100 miles from where the accident happened.

The doctors will schedule the exam for their convenience and not yours. Typically, the Demand for Examination will state that there will be a mandatory fine for the doctor’s time (Often $1,000 or more ) if you fail to show up.

If the above sound distressing, it is but is an actuality seen by personal injury lawyers every day.

Watch YouTube Video: Independent Medical Exam in a Workers’ Comp case. This video explains what goes into a workers’ comp claim and the impact it can have on the case.

How Attorneys Protect Clients from Abusive Doctors

Sadly many “personal injury attorney’s,” especially the ones who are generalists and just do an occasional injury case, do nothing to protect their clients. They do not have an in-depth knowledge of accident law, and their clients pay a steep price for their timidity.

An experienced personal injury attorney will protect his clients from abuse in the exam, and later expose the bias and lack of knowledge of the insurance doctor at trial. Here are a few of the ways an experienced lawyer will protect his or her client:

  • Limit the time the client will wait in the waiting room for the doctor to show up. Often, these doctors keep clients waiting 2-3 hours before they are seen. My office sends a letter to the insurance attorney telling him or her that you will leave if you are not seen within 30 minutes and that you will not come back another day for the doctor’s convenience.
  • I inform them in a letter that no painful or invasive tests are to be done, and no x-rays are to be taken. If the insurance doctor attempts these, you will leave his office immediately.
  • If you are sick, you reserve the right to cancel giving as much reasonable notice as you can and that you will not be on the hook for the doctor’s fee. I also let the doctor know my client will never travel more than 50 miles to be examined.
  • I always have a nurse to accompany the injured party. That way, there is a witness to how long the physical examination lasts, what tests were performed, and what pain the client complained of.
    I bring the nurse to court to keep the doctors honest when they testify before the jury.
  • I advise my client and the nurse not to allow the doctor to conduct a “fishing expedition” asking about injuries or conditions that invade the client’s privacy.
  • After the examination, I subpoena all the doctor’s billing and other records. I want the jury to understand how much this doctor makes from insurance companies each year. I also subpoena any medical articles that the doctor claims “support” the conclusions in the report which inevitably minimizes the injured parties medical conditions. Finally, I find other reports the doctor has done for insurance companies. It’s really amazing that the wording on each report is practically the same. Cookie-cutter injustice, indeed.
  • After I have the above billings, medical records and reports, I have the doctor come to my office for a deposition and give the medical basis of every single one of his conclusions. I ask him to show me the medical textbooks or medical review articles that support the opinions in the medical report. Most of the time, such doctors show up empty-handed since there’s typically no reliable medical texts or articles supporting their opinions.
  • If the matter proceeds to trial before a jury, I find the records of the doctor’s testimony is prior cases. It’s amazing how often the prior testimony parrots the doctor’s testimony in the present case.
  • I let the jury know how much money this “independent” doctor makes from insurance companies every year. I make sure the jury knows that the “independent” doctor saw my client exactly one time (usually for less than ten minutes) compared to the dozens of times the clients treating doctor saw them. I make sure the jury knows what the doctor is hiding about his conclusion, his fees, and his bias.
  • If the doctor disputes causation, saying the accident did not cause the medical injury claimed, I often hire an epidemiologist to inform the jury of the odds that the injury could have happened simply a natural process instead of being caused by the auto accident. Often the odds of an injury just happening spontaneously will show to be over a million to one.

It’s a disgrace that after an innocent person is injured in an accident, he or she is again deliberately vilified by hired guns from the insurance industry. With diligence and the help of an experienced personal injury lawyer, my hope is that juries will see the deception and award my client a fair and just award.

Sacramento Personal Injury Lawyer

I’m Ed Smith, a Sacramento Personal Injury Lawyer.  If you have been injured in an accident, call me at (916) 921-6400 or (800) 404-5400 for free, friendly advice.

I am a member of the Million Dollar Forum and the Top One Percent.

To learn more about my law practice, see the links listed below:

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