When a plaintiff in personal injury litigation puts an aspect of his or her physical or mental health into issue, such as by claiming to suffer disability from a back injury, or claiming to suffer emotional distress and depression as a result of an accident, the defense will look for evidence to challenge any claim of damages or disability.
In order to get an independent evaluation of a plaintiff's injury, the defense may demand an Independent Medical Examination (IME), an evaluation of the plaintiff by a doctor of the defendant's choice. The IME doctor does not provide treatment. Instead, the doctor examines the patient and reviews pertinent medical records, then provides the defense with a report assessing the plaintiff's injuries. The report will typically address:
- Causation: Are the plaintiff's claims of how the injury occurred and the degree of the injury consistent with the medical evidence;
- Assessment: To what extent do the plaintiff's injuries affect the plaintiff's ability to engage in activities of daily life, or otherwise cause pain or disability?
- Diagnosis: Have the plaintiff's injuries been properly diagnosed and, if not, what diagnosis may be more appropriate or what additional testing may be required to make a more accurate diagnosis?
- Prognosis: To what extent can the plaintiff be expected to recover from the injury, and what are the plaintiff's likely future medical needs?
In some cases an injured plaintiff may undergo more than one IME, each with a different medical specialist.
The term used to describe an independent medical exam may vary depending upon the state where litigation is occurring and the type of case. Examinations that can be very similar to IMEs include the Qualified Medical Examination (QME) and Agreed Medical Evaluation (AME).
In some jurisdictions and for some types of claim, the examiner may be appointed by a court or hearing officer instead of being selected by the defendant.
IMEs are typically conducted when a defendant believes that the information obtained through a IME may result in their obtaining evidence that will be helpful in lowering the amount of damages a plaintiff can recover, or in defeating an injury claim. Some defendants almost always request an IME for strategic purposes, even when they have little doubt about the validity of the injury claim.
When more than one aspect of a plaintiff's health are at issue, the plaintiff may have to participate in more than one IME. For example, if a plaintiff is being treated by a neurologist, orthopedic surgeon, and an expert in physical medicine and rehabilitation, the defense may seek IMEs performed by its own specialists in each of those fields.
When the plaintiff is represented by counsel, an IME will often be scheduled by agreement of the parties. If the no agreement is reached or where the plaintiff is not represented by a lawyer, the defense may instead seek a court order requiring that the plaintiff attend the IME.
When giving a plaintiff notice of an IME, the defense will typically send a letter indicating the date of the IME, the name and specialty of the doctor who will perform it, and any request for medical records that the plaintiff should take to the IME. If the defendant requests that the plaintiff take medical records or imaging studies to the IME appointment, unless instructed otherwise by counsel the plaintiff should try not to forget them. Failure to produce requested records may give the IME doctor a poor impression of the plaintiff or question whether the plaintiff intends to cooperate.
The purpose of the IME is to obtain information and expert opinion for the purposes of litigation, not to provide you with a "second opinion" or with medical treatment. An IME doctor will normally have the plaintiff sign a form indicating that the plaintiff understands that the examination does not constitute medical treatment.
Speak with your lawyer in advance of the medical examination.
- Your lawyer may provide a timeline and description of the examination process, and what you can expect from the examination and IME report.
- Your lawyer may have special information or advice for you about the specific doctor who will perform the IME.
- Your lawyer may suggest that you emphasize certain aspects of your injury or disability during the evaluation.
- Your lawyer may instruct you not to subject yourself to certain tests or procedures that are not appropriate as part of the IME.
- Your lawyer may ask that once the examination is over, you make notes of what happened
Be Careful About Disclosures
Your lawyer will likely want to instruct you about subjects and issues that you should not discuss during your IME. For example, you should not discuss your communications with your own lawyer, the status of settlement negotiations with the defendant, your impressions of the defendant's liability for your injury, or the amount of compensation that you hope to recover from the defendant.
Cooperate With the IME Doctor
You should be honest, polite, and helpful during the IME examination. That is true even if you believe that the IME doctor is impolite, or that the doctor does not intend to give you a fair evaluation.
- Try to communicate to the doctor all of the information you believe is relevant to your injury and any symptoms or disability that result from the inju.
- Although the doctor works for the defense, try to think of it as "just another doctor's appointment". The experience of undergoing an IME is usually no worse than meeting with any new doctor.
- Make sure that you are on time for your IME. It is sensible too try to arrive for the appointment at least fifteen minutes early. If you arrive late, even if the reasons are outside of your control, your lateness may negatively affect the doctor's impression of you.
- Do not lie during your IME, as being caught in a lie could undermine your entire legal case and ability to recover damages for your injury.
When answering the doctor's questions:
- The doctor may ask you questions that you find confusing, or where you don't know the answer. If you don't understand a question, ask the doctor to explain it to you. If you don't know the answer to a question, the appropriate response is "I don't know".
- Don't volunteer information beyond what the doctor specifically requests. If the doctor wants more information, the doctor will ask a follow-up question.
When performing an IME, the doctor who is performing the examination will normally start by conducting a patient interview to learn the history of the accident and the plaintiff's medical condition. The doctor will then conduct a medical examination. Whether before, during or after the IME appointment, the IME doctor is likely to consult other medical records that have been provided to the doctor for consideration in relation to the plaintiff's case.
An IME doctor will normally prepare at least one report for the case, summarizing the doctor's findings and conclusions. In some cases the defense will ask for a supplemental report on a specific issue, or the IME doctor will provide a supplement after reviewing additional medical records. Supplemental reports are most likely to be prepared if the IME doctor forms a different conclusion about the plaintiff's injuries than a treating physician or another IME doctor.
During the IME examination the examining doctor makes an assessment of the injury victim, including:
The IME doctor will observe the plaintiff from the moment they first meet. Evaluation starts when the plaintiff walks into the doctor's office. Plaintiffs should assume that any staff members present at the doctor's office are making observations of the plaintiff that will be reported to the IME doctor.
Even before a formal evaluation begins, the IME doctor make observations about the plaintiff, including:
- How the plaintiff is dressed,
- The plaintiff's weight and the state of the plaintiff's personal hygiene,
- The plaintiff's posture,
- Whether the plaintiff has any difficulty standing, walking or climbing onto the examination table,
- Whether the plaintiff shows any signs of distress while sitting on the examination table,
If the IME doctor observes anything else that the doctor believes is relevant to the patient's injury or condition, the observation may influence the doctor's assessment and findings.
Signs of Deception
An IME doctor is normally on alert for any sign of deception, malingering or exaggeration by the plaintiff. The doctor will report any impression that the plaintiff is exaggerating any symptoms, whether intentionally or unintentionally, or that the plaintiff is malingering.
Objective Manifestations of Injury
When possible, the doctor will review any medical imaging studies of the plaintiff to try to find objective manifestations of the plaintiff's injury. An objective manifestation is something that is objectively measurable or observable, such as a bone fracture that appears in an x-ray. Common imaging studies include x-rays, MRI reports, EMG nerve conduction studies, and CT scans. The doctor will also look for objective manifestations of injury when examining the plaintiff.
If the doctor finds objective manifestations of injury, the doctor will evaluate whether the plaintiff's described symptoms. The doctor's report will include the doctor's impression of whether the plaintiff's reports of pain, discomfort and disability are consistent with the objective manifestations observed during examination of the plaintiff or through review of imaging studies.
Subjective Manifestations of Injury
During an IME, the doctor will often ask that the plaintiff participate in testing and, as a test progresses, to provide subjective reports of discomfort, sensitivity or insensitivity and pain. For example, a doctor might use a pin to test areas of skin that the plaintiff reports to be numb. A doctor who is evaluating a plaintiff's claim of a lower back injury may ask the plaintiff to participate in a number of tests that involve turning and stretching, and to report the moment at which the movement starts to cause discomfort or pain, or the moment at which the movement becomes limited by pain.
The doctor may evaluate the plaintiff's reports through a series of tests, and at more that one point in time during the IME, in order to see if the plaintiff's reports of pain or disability remain consistent.
Other Contributing Factors
The IME doctor will normally inquire about other ailments or injuries experienced by the plaintiff. The doctor will ask about other medical issues that may have arisen both before and after the accident. The doctor will consider how any reported issues may have contributed to the injury, whether the injury aggravated a pre-existing condition, or whether a later injury or ailment affected the plaintiff's symptoms or recovery.
The doctor will also consider any lifestyle factors that are discovered through the IME process, and how those factors affect the plaintiff's condition and expected recovery. Possible lifestyle factors include overeating, drinking, smoking, and recreational drug use.
Some IME doctors are highly professional and do their best to provide an objective evaluation. Unfortunately, a great many IME doctors know that they are being paid by the defense, and that the insurance companies that hire and pay them expect that the position of the defense will be improved based upon the IME doctor's findings and conclusions. As a consequence, many IME doctors appear to skew their findings and reports in favor of the defense.
Some IME doctors have a very poor reputation for accuracy and fairness. They will shape their opinions and reports to be consistent with what the defendant's insurance company and lawyers want to hear. If you are being examined by a biased IME doctor, your lawyer may share some advice about how to best avoid any tricks and traps that you may encounter during your IME appointment.
If the IME doctor prepares a report that you believe is unfair, let your lawyer worry about it. Focus instead upon what your treating health care providers tell you about your condition, prognosis and recovery.