What Is A Defense Medical Examination?
Is It A DME Or An IME?
A medical examination of the plaintiff is a common part of personal injury litigation.
The defense calls this procedure an Independent Medical Examination, or “IME.”
Don’t believe the examination is “independent” in the sense of objective and impartial. It isn’t.
Understand what is going on. The defense gets one chance to have you examined by a doctor that they hope will be a witness against you at trial. If they send you to someone who may not see things from the defense perspective, they will have wasted their only chance to create an expert witness against you.
Therefore, the practice is for the defense to hire from the same group of doctors over and over to do these examinations and — surprise! — the doctors almost always tell the defense (the ones that hire them and pay them) something that they want to hear. Then the doctor will appear at trial as a witness against you.
After examining you and reviewing your medical records, the defense doctor will probably conclude that you were not injured at all, that you were not injured as seriously as your physician thinks and/or that something other than your accident caused your injuries. The most common other causes that defense medical examination doctors find are earlier accidents, later accidents, prior injuries and the normal process of aging. Or, they often will say that while they don’t know exactly what caused an injury they know that it was not the accident your case is based on.
I even had a defense medical examination doctor testify once that although my client had the same symptoms for 6 months after her accidental injury, the accident was only the cause for the symptoms that she had for the first 3 months. He testified — with a straight face — that although she had the same symptoms on day 91 that she had on day 90, and that they were the same symptoms that she had since the accident and would continue to have for 3 more months, the accident was the cause of the symptoms on day 90, BUT NOT THE CAUSE of the symptoms on and after day 91! When I asked him what was the cause of the symptoms as of day 91, he said that he did not know! Amazing!
So, a more accurate description of what you will be required to attend is “Defense Medical Examination,” or DME.
Maryland Rule 2-423
This is the exact language of the rule which controls Defense Medical Examinations:
“When the mental or physical condition or characteristic of a party or of a person in the custody or under the legal control of a party is in controversy, the court may order the party to submit to a mental or physical examination by a suitably licensed or certified examiner or to produce for examination the person in the custody or under the legal control of the party. The order may be entered only on motion for good cause shown and upon notice to the person to be examined and to all parties. It shall specify the time and place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The order may regulate the filing and distribution of a report of findings and conclusions and the testimony at trial by the examiner, the payment of expenses, and any other relevant matters.”
I know. I know. I didn’t see the word “independent” in there either.
What Really Happens
In practice, instead of filing the motion that Rule 2-423 contemplates, defense counsel will contact you, the plaintiff’s lawyer, to schedule a DME. If there is a legitimate medical issue in the case, and if the proposed defense expert is in the jurisdiction and not rabidly biased, you might as well work out the terms of the DME with defense counsel. On the other hand, if there is a good reason to object to the examination, tell the defense counsel. Tell defense counsel to file a motion to allow the mental or physical examination. Judges expect these examinations to be scheduled routinely, so only require a motion to be filed for good reasons.
Tips For Dealing With A Defense Medical Examination
Even though the defense medical examination is not independent, you must cooperate in the process. You must go to the examination and cooperate in being examined. Although it may not be a fair examination, you should participate as if it will be. Be yourself. Be honest. Be accurate. If you have a legitimate claim, you have nothing to hide.
Here are some tips that may help.
- Prepare for the defense medical examination with your lawyer. Have your lawyer go over the questions that the doctor is likely to ask you.
- If it’s allowed in your jurisdiction, have your lawyer go with you to the defense medical examination. Your lawyer can only observe, but s/he may learn things that will help challenge the doctor’s report.
- If your lawyer is at the DME, it is a good idea to take your spouse, or a friend, with you to observe. If there is a dispute in court about what happened at the DME, your spouse or friend can testify to what they observed. (Your lawyer cannot testify to these things because s/he cannot be a witness as well as your lawyer in the same case.)
- If allowed in your jurisdiction, audiotape or — even better — videotape the examination.
- A DME exam will usually begin with the physician “taking a history” by asking how your injury was caused and what treatment you have received. One good technique is to take a written statement that you and your lawyer have prepared and give it to the physician if s/he asks you how you were injured. That way, there can be no mistake about what you told the doctor.
- The DME doctor will be looking for signs that you are exaggerating your symptoms. In the DME report, the doctor may comment about such things as how well you were able to get around the room or get on and off the examining table. The point is that you should be aware that you are under observation at all times during the DME.
- If your lawyer was not at the DME and it was not recorded or videotaped, as soon as the examination is complete, after you leave the doctor’s office, make written notes of what happened to give to your lawyer. Include all relevant times, such as the time that you arrived, the time that you were seen by the doctor, how long you were with the doctor, what was said and done, and the like. Your lawyer will be able to use this information to cross-examine the doctor in court, showing how little time was spent with you, especially compared to the time that your treating doctor(s) spent with you.
If you have any question about a defense medical examination in a Maryland accident and injury case, contact us.