THE DEFENSE MEDICAL EXAMINATION
The insurance company has the right in every personal injury case to have you examined by a doctor it chooses. This examination represents the third stage of the discovery process. The insurance lawyers like to refer to this as an independent medical examination or an IME. Plaintiff’s lawyers have begun insisting that this exam be called a defense medical examination or DME, as it is anything but independent. The doctors paid by the insurance company strain to offer opinions that help the insurance company. Also, the DME doctor’s medical skills may be secondary in importance to his or her skills at testifying in a compelling and convincing manner.
It is important to call this exam a DME because that is the most accurate term. Calling it an IME sets up a psychological context and expectation that is against your interests. Even though the commonly accepted term is still IME, and rules of civil procedure may even use the term IME, you should still use the term DME. Calling this exam a DME or defense medical examination in written correspondence, legal filings, during depositions, and even during trial communicates your view of the nature of these exams to the insurance company, their lawyers, the judge, and the jury. Never underestimate the power of words.
It is neither hard to believe nor hard to understand why insurance companies primarily employ doctors who are biased in their favor and more proficient at testifying than at treating or diagnosing injuries. They would get swamped in large jury awards if they did not approach personal injury litigation in this way. Unfortunately, this approach by the defense encourages most plaintiff’s lawyers to seek out doctors who are experienced in plaintiff’s PI litigation. Thus, your doctor also may be chosen for his or her bias in favor of plaintiffs and skill at testifying.
The DME doctor typically will be a friendly, professorial individual who speaks well in public. Trial lawyers know that juries can be more influenced by a doctor whose manner is likable than by a doctor whose medical credentials are superior.
Insurance companies employ professional expert witnesses, that is, doctors who earn a major portion of their living on the witness stand. These doctors are particularly motivated to make findings that comport with the expectations and needs of the insurance companies that pay their salaries. Your lawyer brings out this bias during cross examination of the doctor. Nevertheless, a skilled DME doctor can wreak havoc on a personal injury case. If the jury likes and trusts this doctor, it will be inclined to believe that you were not hurt as badly as you and your doctors claim.
Smart PI lawyers take certain steps to assure that the client is treated fairly by the DME doctor. The lawyer or someone from his or her office should accompany you to the exam to monitor it. In a particularly complex case, the lawyer may retain a registered nurse to take notes during the exam to assure that the client is protected. A lawyer should also make clear to you what to expect during this examination. A sample letter similar to one you may receive from your attorney when the defendant schedules a DME follows. It outlines what to expect.
There is a huge amount of discretion that doctors have in making their findings. Two doctors examining the same patient at the same time may offer dramatically different opinions, depending upon who retained them for the exam. This may be shocking to you but it is the truth. Any personal injury attorney and any insurance company attorney will admit this to you. It is just the way the personal injury war is fought.
The battle of the medical experts is a particularly apt example of the war that is personal injury litigation. Both sides use all of the weapons at their disposal in order to achieve a successful outcome. Without strong weaponry and an effective combat strategy, the battle may be lost. A compelling medical expert witness is a key part of an effective trial strategy.
