Defence Medical Exams: The Myth of the Independant Medical Exam
The Defence Medical Exam (What is it?)
Whenever you place your mental or physical impairment at issue in a claim for compensation, the defendant has a right under our rules of court to require that you undergo a medical examination by a doctor of the defendant’s choosing.
The examination is usually referred to by insurance companies and defence lawyers as an “independent” medical examination or I.M.E.
But make no mistake; there is nothing “independent” about it. A better term is a Defence Medical Examination (D.M.E.). A D.M.E. doesn’t happen in every personal injury case. But if your case is going to trial you can expect the insurance company or their lawyer to demand a defence medical examination.
Who, When and Where
The insurer must give you reasonable notice of the time and place of the examination and the name of the D.M.E. doctor as well as the scope of the evaluation.
“Do I Get to Know What the Doctor Says?”
In Nova Scotia, our court rules require the D.M.E. doctor to provide a copy of the report to you (or your lawyer) within a reasonable time after the examination.
In exchange, you are required to provide copies of all medical office treatment notes, lab reports, consultations etc. from each doctor who has examined or treated you for the injury or impairment you are now claiming.
In addition, most insurance companies will also ask you for a signed authorization so that other information may be obtained before your D.M.E. date. Do not sign anything without consulting with your lawyer!
The D.M.E. doctor may be subpoenaed to give testimony under oath during a discovery examination, and may testify and be cross-examined at trial if your claim is litigated at a later date.
Proper Preparation is Critical
Therefore, it is extremely important to be properly prepared for the D.M.E. and understand the objectives of the examiner. The D.M.E. is a physical or sometimes a menatl examination by a doctor chosen by the defendant (or their insurer) for the purpose of providing medical evidence which can be used by the defendant insurer to defend your claim.
In theory, D.M.E.’s are intended to “clarify” complex medical restrictions and limitations. In practice, the D.M.E. is a tool paid for by the defendant’s insurer which supports their decision to deny your claim for compensation.
The problem is that there are some doctors whose practice consists primarily of conducting D.M.E.’s.
Conflict of Interest?
The potential for a conflict of interest is obvious: if a significant portion of your income comes from providing reports to insurance companies, how often do you think the insurance company will hire you if you give the insurance companiy a report that doesn’t support the insurance company?
These doctors are not “independent medical examiners” by any reasonable definition, and are usually hired to provide testimony that supports the defendant insurer.
For example, D.M.E. doctors may offer render opinions and conclusions that are outside their area of medical expertise. D.M.E. doctors may assume the role of a claims investigator, paid by the insurance company, to provide documentation adverse to you and your claim.
For example, our firm represented a client who suffered a brain injury in her car accident. The Defendant’s lawyer hired a well known neurologist to do a D.M.E. to determine if my client had a brain injury.
The Defence neurologist’s report not only contained opinions in the field of neurology, but also psychology, psychiatry, neuropsychology and orthopedic medicine. All in an effort to deny that my client had suffered a brain injury.
Therefore, it is important to remember D.M.E. doctors are not concerned with your medical well being, and have a clearly defined agenda and strategy to assist the insurance company with what appears to be, credible, objective medical opinion contrary to that of your primary care physician or family doctor. Their role is to attack your credibility by assuming that your claim is a fraud that must be exposed.
D.M.E. doctors are provided with all the medical information you previously sent to the defendant’s lawyer. The D.M.E. doctor takes instruction from the Defendant’s lawyer. Therefore, the D.M.E doctor already knows the “opinion” of the defendant concerning your ability to work before you arrive for the evaluation.
Isn’t it reasonable to conclude the D.M.E. doctor may have already formed an opinion concerning your impairment? Especially when the defendant’s lawyer is the one that hired them. If you are not prepared for the D.M.E. your claim may be seriously damaged.
What You Need to Know
We have a few suggestions to help you prepare for your D.M.E. Although the following suggestions won’t guarantee that your claim will be successful, they can help prevent the defence doctors from unduly damaging your claim.
Do Your Homework
The doctor will likely conduct an interview before the medical examination. The doctor typically refers to the interview as “taking your medical history”. The purpose of the medical history is to obtain facts and comments from you which may be used after the D.M.E. to show you are inconsistent with your responses.
It is important to review your past medical records so that you remember if you have been treated for any illness, symptom or injury that may be relevant to your claim. For example, if you are claiming compensation for a back injury, it is important to review your records to see if you ever saw your doctor before your injury with complaints of low back pain. If you deny that you ever had any problems with your back, the D.M.E. doctor may suggest that you are hiding information or not being truthful.
Smile, You May Be On Candid Camera
Remember, the defence insurer may have arranged for video surveillance the day before, the day of, and the day after your D.M.E. Whatever you tell the doctor about your physical capacity should be the same as what you told the insurance company when you gave a statement or what you testified to at discovery.
It should also be the same as any observed activity should the company have you under surveillance before the exam.
Keep in mind when speaking with the doctor to answer only the questions asked, and then be quiet. Never volunteer or offer additional information other than what is asked.
For more information contact us for a copy of our free report How To Prepare For Your Defence Medical Exam.