The Myth of the “Independent” Medical Examination
Sasquatch. The Abominable Snowman. The Easter Bunny. All are well-known fantasies that have been talked about for longer than any of us have been alive. Today, I want to add another, less well-known but equally fictitious name to the group: the “independent” medical examination. For those who have yet to be exposed to this mythical creature, allow me to explain.
When someone is injured in an accident that was caused by another person’s negligence, it is not at all unusual for a lawsuit to be filed as a result. In most cases, the attorneys representing the injured party will make an effort to resolve the claim without filing suit, simply because doing so is more efficient and less costly to everyone, including the client. Unfortunately, insurance companies in today’s climate have very little incentive to be fair and reasonable. Their goal is to hang on to their money for as long as humanly possible, and to pay the injured party the least amount of money they can. Accordingly, it frequently becomes necessary for a lawsuit to be commenced.
When an injured party files a lawsuit, the Rules of Civil Procedure afford the defendant an opportunity to have the plaintiff examined by a doctor chosen by the defense. The rules refer to this as an “independent medical examination”, although there is absolutely nothing about it that is “independent”. The doctors who perform the examination are selected and paid for by the insurance company or its lawyers. Most insurers use the same doctors to do these exams over and over again. Many doctors have formed separate businesses, apart from their regular medical practices, just to handle the large volume of such exams they are asked to perform each year. I recently handled a case in which the defense doctor testified that he earned nearly $500,000 per year performing “independent” medical examinations. Remember, that is in addition to what he earns as a practicing physician.
Now, just sit back and think about this for a moment. Insurance companies want to make sure that they pay you as little as possible for your injury claim, so their incentive is to find a doctor who is likely to conclude that the injured party isn’t hurt nearly as badly as he or she claims, or maybe isn’t even hurt at all. The company is free to pick whoever it wants to do the exam, so once the company knows which doctor is most likely to give it what it wants, guess which doc gets the vast majority of the exams? So now, this doc is generating $250,000 – $500,000 per year doing the exams, so what do you think the chances are that the doc is going to say something in his report that the insurance carrier doesn’t like? How many IME docs are anxious to kill the goose that is laying the golden eggs? Now you see the problem.
Several months ago, I tried a case in Wood County for a client who had been hurt in a rear-end auto accident. She sustained a significant injury to the muscles in her neck, and the injury just wasn’t healing. She slept most nights on a chair in her living room. She had multiple muscle massage devices she used in the hopes of finding some relief. The insurance company hired a doctor from Pittsburgh to examine her. To my surprise, the doctor’s first report concluded that she had been hurt in the wreck, and the injury was likely to be permanent. A few weeks later, we received an “amended” report from the doc, in which he said he couldn’t say for sure if the injury was permanent. He later admitted he made the change after speaking to a representative of the insurance company. And if that isn’t bad enough, when it came time to take the case to trial, the doctor appeared and testified that the woman really hadn’t been hurt at all in the car wreck. On cross-examination, the doctor admitted that his second change of heart had come about after a second conversation with the folks from the insurance company. “Independent” medical examination? Not hardly.
I can honestly tell you that in the last 20 years of my practice, I can’t remember a single time when an IME doc testified that my client was actually hurt. Think about that for a minute. I’m sure I have represented thousands of people in that span of time, and I’m equally sure that hundreds of them have been subject to an IME. Does anyone honestly believe that not a single one of those folks was actually injured? Or is the more likely explanation that the IME docs are giving the insurance company exactly what it wants? The answer is pretty obvious.
Sasquatch. The Abominable Snowman. The Easter Bunny. The Independent Medical Examination. All exist only in the minds of those who want to believe.
Today's blog: John Artimez goes over what an 'independent' medical examination in an insurance case is and how it is becoming more and more of a myth in the courtroom.