Medical Malpractice Doctor Wants Examination

[Gulskjegg]

My question involves medical malpractice in the state of: Virginia

I am currently in the middle of a Medical Malpractice lawsuit against the Department of Veterans Affairs. I am proceeding pro se, but my case is going very well. On the same day I filed my Plaintiff's Expert Disclosures, I received a letter from the VA Medical Center that is named in my suit. Turns out the VA wants me to come in for a physical examination. Better yet, guess what doctor was scheduled to perform the examination? The same doctor specifically named as committing MedMal in my Independent Medical Evaluation! I was surprised by the letter, and the next day a cancellation letter arrived, but the VA merely assigned a new doctor to perform the examination.

To clarify, I have not stepped foot in the VA Primary Care Clinic in almost 2 years, and I most certainly did not request this appointment. I am a 100% disabled veteran, and thus I have earned full and complete health care, but due to the VA's actions, I have been forced to pay for my own health care outside the VA now and doing much better. At the very least, I will be putting together a Motion for Clarification to the Defendant for failure to adhere to guidelines set forth in Rule 35 of Federal Rules of Civil Procedure, Physical and Mental Examination.

Since my situation is rather unusual, I doubt anyone will be able to provide any specific help. I will however ask if anyone knows how best to hold this clear and unmistakable error up to the Judge as a serious case of crazy-pants on the part of the Defendant. Or, should I just push the motion and let the Judge decide for himself how improperly the Defendant has acted.

Thanks.

[Mr. Knowitall]

The error being that they asked you to see the defendant doctor - the one they immediately corrected? Mistakes happen. You can ask your lawyer what he thinks, but I doubt that the judge is going to see it as an issue.

[free9man]

Being asked to submit to an examination by a doctor of the other side's choosing is pretty common. As Mr.Knowitall pointed out, they messed up on who they assigned you to see and fixed it. Not likely to be something worth fighting over. In the end, it is very likely you are going to either have to see a VA doctor or an independent doctor approved by the VA/court for an examination as a part of your lawsuit.

[Mr. Knowitall]

It doesn't sound like this is part of the litigation, so much as it is some form of appointment to verify the continued eligibility for benefits. It would be helpful to have clarification.

[Gulskjegg]

Thank you for the feedback, everyone. My primary concern on this matter regards Rule 35 or the Federal Rules of Civil Procedure. This Rule states that any physical or mental examination by the Defendant must be performed by "a suitably licensed or certified examiner".

I have my doubts that the VA doctor I may be seeing is a certified Independent Medical Examiner. Plus, I would think having a VA doctor perform the examination would somehow lessen the whole "independent" aspect of a examination. Maybe the Defendant trying to save a few bucks they would otherwise spend on a proper examination? I am quite sure this would work on the average pro se litigant, but not with me.

Regardless, I have placed a Motion for Clarification to the Defendant's counsel, so I guess time will tell.