Preparation for a Defense Medical Exam (DME), MAJ Trial Reporter (Spring 2017)

PREPARATION FOR A DEFENSE MEDICAL EXAMINATION (DME)

So you are going through your mail when you come across a letter from opposing counsel that tells you that your client has been scheduled for an “independent medical exam” or “IME” with Dr. X on (insert date and time) and that if your client does not attend as scheduled, he will be billed for a missed appointment. Your first thoughts after reading such a letter are probably unprintable. Having received scores of them, I have developed a protocol for dealing with them.¹

The Law

Under Maryland Rule 2-423², SCR-Civil 35³, and Federal Rule of Civil Procedure 35, these exams must take place either by consent or after a court order is obtained. This gives plaintiff’s counsel leverage to insist that “reasonable conditions” be agreed upon in writing before consenting to the requested examination. By reasonable, I mean conditions that you would find acceptable justifying to a busy Judge—who likely does not relish discovery disputes—at a hearing on the circumstances under which the Court will allow the examination.

Write to Defense Counsel

Initially, within no more than a few days after receiving defense counsel’s letter scheduling the unconsented to DME, I will write back that I will consent to the DME if we first reach an agreement in writing on a list of conditions that I will then set forth in the letter. (The letter also states that if we do not reach an agreement, counsel should timely cancel the appointment for the DME so that my client is not charged for a “missed appointment.”) The exact conditions I demand depend in part on the examiner and the degree to which I think my client needs protection from him. In my experience, some of these examiners are likely to concede points that they should, whereas others will fight you on nearly everything. If you have a clean case with a great client, you may actually want the latter as you can use this unfairness to polarize the case.⁴ Conversely, if you have an examiner you consider a decent draw, you might not want to be too strident with the conditions on the outside chance that a relatively reasonable defense examiner will withdraw from the case and the defense will succeed in getting the court to allow someone more odious.

Below is a list of conditions that I sometimes insist upon:

• (1) that Plaintiff will not complete any questionnaires or other documents (other than a consent form or authorization to undergo the examination);

• (2) that Plaintiff need not provide any documents, x-rays, MRIs, or any other items to the defense medical examiner on the examination date (typically, neither he nor my office possesses any x-ray or MRI films or CT scans⁵);

• (3) that a copy of Dr. X’s report (the “Report”) will be sent to counsel for the parties simultaneously within fourteen (14) days of the examination and that the failure to provide the report within this time frame will disqualify the examiner from testifying at trial;

• (4) that no lawyers will edit or participate in any way in the drafting of the Report;

• (5) that no radiological testing will be done at the DME;

• (6) that defense counsel will assist me in arranging the discovery deposition of Dr. X and that, within two (2) days of receiving the Report, I can cancel the deposition without any financial penalty;

• (7) that on or before the date I receive the Report, defense counsel will provide me with Dr. X’s C.V., fee schedule, and any list of deposition and trial testimony he maintains (or has maintained) for Federal Court purposes⁶;

• (8) that this will be the only DME to which Plaintiff will submit⁷;

• (9) that defense counsel will agree to accept service of any discovery subpoenas I propound; and

• (10) that I have the right to call Dr. X at trial should his testimony prove favorable to Mr. Plaintiff.

Other Potential Conditions or Methods

What follows is by no means an exhaustive list, but rather additional food for thought:

1. Transportation

   I currently have a senior citizen client who will drive a few miles to my office, but does not drive on the Beltway. For that client, I insisted that the defense firm arrange for her round-trip transportation to and from the defense examiner’s office, which was in another county and would have involved driving on the Beltway. The firm arranged a car service (not Uber or Lyft) to take her to and from the examination.

2. Lost Wages

   I do not generally insist on clients being reimbursed for their lost time from work as a result of attending the examination. Thus, I have never litigated this potential condition. While it seems reasonable to me, I think some Judges would view the DME as something for which a plaintiff signed-up by filing a personal injury lawsuit (akin to a deposition), and thus, would not order the defense to pay lost wages for the time involved in attending the examination.

3. No references to independent medical examination (IME)

   Some plaintiff’s attorneys insist as a precondition that the examiner not refer to the examination in his report or testimony as an “independent medical exam.” I do not mind when the paid opinion witnesses do this because it allows me to argue to the jury in closing that the examiner is far from independent, was not hired by the court, and that the defense team is trying to fool them.

4. Observers

   In run of the mill connective tissue injury cases, it is probably not cost effective to have an observer, such as a nurse, attend the DME. In a larger case, or one with a client who is a minor or mentally challenged, it is often a wise precaution.⁸ This is not something you should do yourself because you risk turning yourself into a witness at trial if something untoward occurs during the examination. Regarding logistics, I think it is wise to notify the defense that an observer will attend. Otherwise, the doctor may refuse to do the examination and you risk having a Judge agree with defense counsel’s obvious (and, in my view, unmeritorious) argument that the doctor was shocked (!!) and unprepared to have the observer present and had to cancel the exam. While I would hope that a Judge would see through such nonsense, I would not want to have to pay for the nurse to appear twice if the Judge disagreed with me.

5. Stipulation

   That the agreement between counsel be reduced to a Stipulation, which will be executed by the parties’ attorneys, and filed with the court at least two weeks before the examination. While I think this is a great idea, I have never taken this additional step and it has yet to matter in any of my cases.

Subpoenaing Financial Records

If I get an examiner I consider totally unfair and a good performer in Court, whom I believe is paid impressive sums of money from the insurance company behind the defense of the case, I will often send out subpoenas and deposition notices to the company itself or allied companies (e.g., State Farm Mutual Automobile Insurance Company and State Farm Fire & Casualty Company) soon after I am notified about this person’s involvement in the case.

Preparing Your Client for a DME

If you put yourself in the shoes of a client attending a DME, you will quickly realize that this is an anxiety provoking event for most clients. They are going to be examined and scrutinized by a doctor who is likely being paid substantial sums by the insurance industry and probably testifies in far more cases than many of us try. This process will be intimidating to clients before they face the doctor and, of course, some of these doctors will try to further intimidate clients during the exam. For these reasons, I like to prepare clients for these examinations myself.

First, I review the client’s early symptoms from the injury causing event and their current symptoms so they can describe the injuries that have healed and those that have not. I remind clients to be honest and not exaggerate, but also to fully explain the injuries, any pain or limitations that they cause, and the effect that they have on their lives (and I ask the client to explain these things to me so that I know that he can do so with the examiner). I will also review the mechanics of the injury, and if the precise mechanics are unknown, the reason(s) why this is so. Of course, if there are any complicated issues regarding causation, future surgery or anything else in the case, we will discuss these as well.

If the doctor has a reputation for asking questions about liability unrelated to causation or damages, consider sending your client to the exam with a copy of his deposition transcript and instructing him to present it to the doctor if such questioning occurs. He can then tell the doctor that he has been instructed not to answer those questions because they are not proper.

I also suggest giving your client your cell number and telling him to call you immediately if anything inappropriate happens at the examiner’s office or during the exam itself.

Additionally, I generally provide each client with the following advice:

1. Do not miss the appointment

   If you fail to attend the DME, the insurance company will conclude that you are an unreliable person and may, as a result, offer you less money (if they choose to offer you any). In addition, the insurance company will probably try to charge a non-appearance fee, which can be in excess of $250.00. So please notify me immediately if you cannot attend your appointment so that it can be changed to a convenient date.

2. Do not be late

   If you are late for your appointment, the doctor is likely to make a notation, which could hurt you at trial, and, in addition, lateness is a factor which could prejudice the doctor towards you.

3. Entering and leaving the doctor’s office

   Many doctors have a policy of watching you enter or leave the office so that they can compare your walking when you think that you are unobserved to your walking when you know that the doctor is observing you. For this reason, you should be aware of the possibility that the doctor is observing you before or after your appointment and you should not exaggerate while walking in the doctor’s office.

4. Be pleasant

   Do not be defensive and argumentative with the doctor. If you behave in such a manner, it is likely that the doctor will note such behavior and, when later testifying, will comment regarding such behavior. This would make you look bad in front of the jury.

5. Be truthful

   Do not think of what the best response is to a doctor’s question or what the doctor is “really after.” Instead, it is essential that you tell the absolute truth at all times regardless of whether you think the answers will help or hurt you.

   So…when the doctor asks how you are, don’t say “fine” if you are not fine.

6. Be sure to tell the doctor what is (or was) really wrong with you

   Tell the doctor exactly what does (or did) bother you. While it is important not to make up or exaggerate symptoms, it is just as important to inform the doctor of your true complaints.

   Because the doctor is likely to summarize the history that you reveal to him in his report, it is vital that you communicate what your actual problems are (or were). If you fail to mention a problem, the insurance company will use the doctor’s report to contradict you if you later claim that this problem resulted from the event that injured you. Please review your medical history before the appointment so that you can accurately relate it to the doctor.

7. The physical examination

   If anything hurts, say “ouch.” Otherwise the report will read “Did [insert motion] without difficulty.” Also, once you say “it hurts” don’t let the doctor push you further. You are not there to become more injured.

8. But do not exaggerate

   A good defense attorney feasts upon clients who exaggerate. Doctors are aware of the pain patterns which individuals should exhibit for certain injuries and will make notations if your responses are exaggerated or inappropriate. For this reason, it is most important for you to be honest with the doctor, and to honestly describe the problems which you are experiencing without exaggeration.

9. Review your medical history before the appointment and, if asked, make sure you reveal your complete history

   You will probably be questioned about your medical history, which should include all past medical problems, illnesses and injuries.

   If your medical history includes a matter that is relevant to your current injuries and you do not, when asked by the doctor, reveal it, the failure will most likely have a negative effect on your case. If your medical history is very significant (for example, you had an operation on a body part you injured in this case) and you attempt to mislead the doctor about it, you may lose your case.

10. Accurately respond to any questions regarding other accidents or injuries

    Like your previous medical history, the failure to respond to a doctor’s questions regarding other accidents or injuries could provide opposing counsel with strong ammunition during trial. If requested to discuss other accidents or injuries with the doctor, do not try to “help yourself” by failing to include other accidents or injuries.

11. Do not question the doctor about his role with the insurance company or defense attorney

    Show the doctor respect at all times.

12. Do not discuss how the event that injured you took place other than to describe the mechanics of your injury

    If you were in a car crash, you may tell the doctor what happened to you inside the car at the time of the crash. But you should not discuss how or why the crash took place. If you slipped and fell, you may tell the doctor what part of your body struck the ground and what surface the ground was, but you should not discuss the reason(s) why you fell. Similarly, you should never discuss how much you believe your case is worth or whether or not you want to settle your case.

13. Do not fill anything out other than a simple authorization to be examined

    No questionnaires. Blame your unwillingness on me.

14. Time the amount of time you spend with the doctor

    If you can accomplish this discreetly, wear a watch to the defense medical exam and note the amount of time that the doctor spends with you. Then record this amount of time after you have left the doctor’s office.

15. Marketing Materials

    If there are any brochures about the doctor or his practice, collect them and get them to me. (These brochures may indicate, for example, that the doctor is not the person in his practice who treats the type of injuries your client suffered. While less important in the internet era, these materials can still provide useful information.)

Post DME

I typically ask my client to call me after the examination for a debriefing. Among other things, I will want to know: (1) if the client was hurt by the examiner; (2) if the client (against my advice) filled out a questionnaire; (3) how long the actual examination took; (4) what was done; (5) what was said by the client; and (6) what was said by the doctor.⁹

¹ In order to keep this article to a manageable size, I have drafted it with an orthopedic DME in mind. While some of what follows would also apply to a mental health related or other DME, suggestions for other types of DMEs could fill another article.

² MARYLAND RULE 2-423—MENTAL OR PHYSICAL EXAMINATION OF PERSONS 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. (Emphasis supplied.)

³ SCR-Civil 35—Physical and Mental Examinations of Persons (a) Order for Examination. When the mental or physical condition (including the blood group) 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 physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(b) Report of Examiner.

(1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of the detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery, the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that such a party is unable to obtain it. The Court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the Court may exclude the examiner’s testimony if offered at trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition.

(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other Rule.

(Emphasis supplied.)

⁴ See Polarizing the Case by Rick Friedman.

⁵ If he does, I will instruct him to bring them. Likewise, if I have a disc containing such studies and can replicate it, I will do so and forward it to defense counsel. If neither my client nor my office has such studies, I will ask my client to sign a limited authorization that will enable defense counsel to arrange for the transportation and return of such things.

⁶ Note that, in a Maryland Circuit Court case, in accordance with the Maryland Rules, I only ask for the production of the most current existing list of testimony, not the creation of a list not already in existence. In Federal Court, however, the examiner would be required to create or produce an updated list under FRCP 26(a)(2).

⁷ This can be particularly important in multi-defendant cases.

⁸But consider that the doctor might do a more thorough job because of the presence of the observer.

⁹ If the doctor asked questions about liability and the client refused to answer them, I will want to move in limine to keep the doctor from mentioning this so that it cannot referenced by the doctor or defense attorney at trial.