Most practitioners in New York are familiar with what an "independent medical examination" is. Commonly referred to as an IME, many plaintiff's attorneys consider these examinations as being anything but "independent".
An IME takes place after plaintiff's deposition is conducted and is always conducted by a doctor who is hand picked and paid for by the defendant.
In New York, attorneys have traditionally only appeared for IMEs on their larger cases, if at all. It is advisable that an attorney appear at every IME to ensure that the client's rights are fully protected.
Here are 4 Tips for Handling IMEs
- Do Not Allow Your Client to Fill Out Objectionable Intake Forms
Chances are your client will check in and be handed a lengthy intake form to fill out. The form will request information such as a social security number and contain questions about where, when and how the accident happened, prior accidents, subsequent accidents, prior injuries, subsequent injuries and much much more. Most of these questions are inappropriate. The client is there for a physical medical examination. A deposition has already taken place where the client has been questioned ad nauseum regarding the accident. For the doctor to be requiring the client to fill out an intake form with even more questions regarding the accident can provide defense counsel with an avenue to cross examine the plaintiff a trial (if for some reason the version is slightly different for whatever reason). An attorney can fill out the form for the client "by counsel" and refer the treating doctor to the deposition transcript and Bill of Particulars that have been exchanged. The IME doctor should have been provided with this information, along with any medical records, prior to the deposition by the hiring law firm. If not, then that is defense counsel's error and the doctor should request that information directly.
- Record the Time the IME Starts and Finishes
It is surprising for clients to find out that an IME usually takes about five minutes or less to perform. In that five minute or less examination, the doctor usually prepares a report opining that the plaintiff is not injured at all or that the plaintiff has healed completely and there are no physical limitations. Recording the time the IME starts and finishes is important, especially in the event the case goes to trial. This is information that can be used to cross-examine the doctor on the stand. The Jury should come to its own opinion as to whether the IME doctor performed a thorough examination in five minutes or less, and decide for themselves whether plaintiff's treating doctors (who may have treated the patient for years) are more credible.
- Be Wary of the Doctor's Questions regarding the Accident
Again, the doctor is there to perform a physical examination, not to inquire further regarding the accident. If the doctor continues to inquire, we recommend objecting to any further questioning and respectfully referring the doctor to the deposition transcript and bill of particulars, all of which should have been forwarded by defense counsel prior to the examination. The client is not at the IME to provide further testimony. Note: Obviously the client can state the very general nature of the type of accident and injuries, but there is a fine line between providing basic information and allowing the doctor to engage in a deposition. Without an attorney in the examination room, the doctor will likely proceed as usual and specifically note any perceived inconsistencies regarding the circumstances of the accident in his/her report - which will later be used by defense counsel during summary judgment and at trial.
- Advise Client to Verbalize Complaints
Clients should be advised of what to expect at an IME. The doctor will perform a physical examination, including range of motion testing. Some clients, especially men, are too proud to verbalize their discomfort or pain while the examination is being performed. As such, the client should be advised that now is not the time to "be strong". If the doctor is not made aware of discomfort or pain, then the final report will absolutely note that all testing, including range of motion testing, was within normal limits and that the plaintiff is either not injured or fully healed.