Defense Medical Examinations in Personal Injury Lawsuits
Hi, I’m attorney Ben Schwartz,
Today we are going to do a video on Defense Medical Examinations in Personal Injury lawsuits. I have been asked several times to do a Top 10 video on this topic of independent medical exams or defense medical exams; sometimes called insurance company medical exams. It is something that we deal with all the time because we are handling personal injury cases. Basically, if you are not familiar with what this is, it is something that happens in personal injury cases, or maybe not necessarily personal injury cases per se, like car accident personal injury cases, slip and fall personal injury cases. I understand they also come up in another context as well, such as in employment-type cases, insurance claim type cases. It is quite often that an insurance company hires a doctor to perform a defense medical exam or a defense lawyer who is representing an insurance company or representing the at-fault party in a claim and of course that means is hired by an insurance company. That defense lawyer will hire a medical doctor to perform a defense medical exam.
If you’re watching this video, chances are you have been injured in a car accident or some other type of incident. You have made a claim. You hired a lawyer and you’re pursuing a lawsuit. During the lawsuit, the defense lawyer has scheduled you for a defense medical examination with a doctor who is not your treating physician. He is not your choice of doctor, it is somebody hired by the insurance company.
So, folks want to know, what do I expect? What should I do to get prepared for this? I made a top 10 list. Now, this is not everything under the sun that you could do to prepare for a defense medical exam. I think the top 10 things that if I were injured in an accident if I were a plaintiff or a claimant, and this happened to me, these are probably the..
10 things I would do to get prepared for a defense medical exam
- Know your relevant medical history and your providers’ names. That doesn’t mean get your medical records and memorize everything. That means you should be generally familiar with where you went and what you did for medical treatment after your accident. You should be generally familiar with the names of your doctors, physical therapists, and facilities. If you had shoulder surgery after a car accident, you should know what the facility name where you had the shoulder surgery, whether that be the operating room in the hospital in your community or whether that be in an ambulatory surgery center. You should know the name of the facility; should know the names of the providers of the doctors. You would be surprised how many times we have clients, or where we are involved in cases, and the people don’t know the names of their doctors. I can tell you that if you’re going to a defense medical exam with the doctor, that doctor will have been provided with your medical records, he’ll know the names of your medical treatment providers. You should know the names of your medical treatment providers too.
- Don’t minimize or maximize your injuries for purposes of the exam. Whatever your injuries are, however you’re feeling on the day of the exam, it is what it is. The last thing that you want to do is get into an exam and act as if the injuries are worse than they really are, or get into the exam and try and minimize the injuries, telling the doctor that they’re not as bad as everyone’s making them out to seem. It is what it is. Follow that mantra it is what it is, don’t make it more and don’t make it less.
- Don’t take antispasmodics or muscle relaxers before a defense medical exam. There are a lot of people who have been injured in an accident and sustained things like disc herniations in their necks or their backs. One of the things that happen when you have disc herniations or you got another structural damage to a body part is that the damaged disk or ligaments can press on nerves which send interruptions in the nerve signals and causes muscle spasms. One of the things that a defense medical doctor or insurance company doctor is going to be doing in a defense medical examination is palpating or feeling the muscles in order to determine whether there’s any spasm. You don’t want to quell the spasms or stop the spasms during this exam, you want the doctor to feel them if there. In other words, don’t take anything to mask the symptoms that the doctor should be able to appreciate to come to a valid conclusion as to your diagnosis.
- You should be prepared to describe the effects of your injury on your life, but only if asked. In a defense medical exam, you’re only going to answer those questions which are asked of you. You’re not going to volunteer information. You’re not there to inform the defense medical examiner of anything that they don’t want to know. They’re going to have your medical records, they can look in the medical records and get almost all the relevant information from the records. If they ask you how the injury has impacted your life, I think that it’s wise to be prepared to answer the question with 1-2-3 examples of things that it is now harder to do or things that you cannot do because of this injury.
- Don’t miss the appointment or arrive late. One of the things that sometimes happens in personal injury cases is the claimant or the plaintiff get scheduled for defense medical exam and they miss it. This is not like missing a normal doctor’s appointment. These defense medical examiners are paid thousands of dollars by the insurance companies to do these medical examinations. The missed appointment fee can be a thousand or fifteen hundred dollars. There are cases where people miss their defense medical examination and then in order to get their case to proceed, the courts will force them to pay the missed exam fee. So, it can be very expensive if you miss it. You should not miss it and you should not be late. I would arrive at least half an hour, or an hour early, to the defense medical exam. If I got scheduled for a defense medical exam and I was not familiar with the location, I would go the day before to that location to make sure I know where I’m going. I would do it the day before, or the weekend before, sometime before so that on the day of the exam, I know where I’m going and I can get there.
- Understand that in your case, the day when you are scheduled for a defense medical exam is the best day for surveillance. So if there’s going to be a day where the defense lawyer or the insurance company is going to send out a private investigator to follow you around and videotape you, videotape you walking to see if you walk with a limp, videotape you lifting things to see if you’re able to lift different things, videotape you to see where you go and what you do, it’ll be on this day because this is the day when they know where you’re going to be and what time you’re going to be there. This may be the only day in the entire case where they know where you’re going to be and when you’re going to be there. So I would not advise you to pick this day to go water skiing; pick this day to climb a tree. I would not advise you to do anything out of the ordinary on this day, you should assume that on the day of your defense medical exam you’re going to be surveilled by a private investigator.
- Ask your attorney ahead of time if you can video record or audio record the defense medical examination or take a friend with you. This is something that is going to differ from state-to-state. In some states, your plaintiff’s personal defense attorney can go with you to the medical defense medical exam. In some states, a nurse can go with you, a nurse selected by your lawyer can go with you. In some states you can take a friend. In some states, the entire exam will be videotaped and audiotaped to preserve what happened. In some states, none of this stuff happens. In some states, there is nothing requiring the defense to videotape these exams. Oftentimes the doctor says one thing happened and the patient or the plaintiff says another thing happened. Before you go to the exam, you should ask your attorney what you can do and how you can record it. At a minimum, I think you should take someone with you and even if you’re in a state where you can’t videotape it, where you can’t audiotape it, take a friend with you and ask when you get there if that person can accompany you into the exam room. Whether you be nervous, and you want to take a friend with you or you just want to have some moral support, take a friend with you if you can.
- Take detailed notes of what the doctor did in terms of the examination, the testing, etc. and give those notes to your attorney. Oftentimes I find that when the doctor testifies, the doctor says I did 27 different tests. I had them doing range of motion testing, I did palpation, I did this test and that test. I used a tool to measure range of motion. Then I asked my client, did the doctor do all those things? The client says the doctor didn’t do any of those things. Well, when you’re in the exam, you should be taking note, paying attention to what the doctor is having you do. You should be paying attention to what the doctor is doing, what body parts is he focusing on, what testing is he doing and then you should write it down. If you can’t write it down there and then in the exam room, when you get out to your car, have a piece of paper and a pen and write it down there and then. This is what happened during the exam, then give that piece of paper to your lawyer so your lawyer knows what actually happened.
- Time it! You should time everything, note the following:
– what time you arrived at the doctor’s office
– what time you went into the exam room
– what time the doctor came into the exam room
– what time the doctor started his physical exam of you
– what time that ended
– what time you left the exam room
– the time you left the doctor’s office
This way you can calculate how many minutes the doctor was laying hands upon you and doing physical testing. You can note how many minutes the doctor was asking you questions and discussing the case in taking a detailed history. This is all information that is vital for your lawyer to have because when the doctor testifies, the doctor’s going to say, “I was with this patient for an hour, I took 40 minutes of time in order to do a comprehensive physical examination.” Your experience may be, the doctor had you in the exam room for 11 minutes and took 4 minutes of time to do an in-comprehensive physical examination. That’s a good thing to know because often times these doctors are paid a lot of money by insurance companies and they don’t really do what they’re supposed to do. That is something we need to know as attorneys in order to properly represent our clients.
10. Be nice to the doctor and be nice to the doctors’ staff. These doctors are hired by insurance companies to give testimony minimizing people’s injuries. To give testimony essentially saying that the injuries are not as they are claimed. In order to have some credibility, the doctor needs to be able to point to an occasional case where he agrees that the person is legitimately injured. So, even if that’s 1 in 100 exams, if you’re the 1 in 100 people that are nice to that doctor, or the 1 in 100 people that are nice to that doctors staff, maybe you’ll be the person where the doctor gives an accurate, honest, truthful assessment, confirming that you are truly injured and your case will settle. I think being nice to them, even though they’re hired by the insurance company, even though they’re wearing the Black Hat, they’re the bad guy, be nice to them anyway because that’s the classy thing to do.
I’m attorney Ben Schwartz, I hope you found this video interesting and informative, especially if you’ve got to go through the defense medical examination process in a personal injury case. If you have questions for me that you would like me to answer in a video blog format send me an email below. Thanks for watching!
Defense Medical Examinations in Personal Injury Lawsuits
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