Defense Medical Examinations are Not Independent

“What is an “Independent Medical Examination?” Hint: It’s the same as the Tooth Fairy, the Easter Bunny, and Clean Coal Technology. There is no such thing. Although the law compels a plaintiff to undergo an examination conducted on behalf of the defendant, it must be recognized for what it is: adversarial. This article discusses how to protect your client during this process. It is divided into six sections: the basics, the response, preparing your client, attending the examination, post-examination strategies, and mental examinations.

The Basics

Code of Civil Procedure section 2032 et seq. sets forth the manner in which a defendant shall compel the plaintiff to undergo a physical examination. Although there is no substitute for reading the entire statute, excellent explanations can be found in The Rutter Group California Practice Guides on Civil Procedure before Trial and Personal Injury. The most important thing to recognize is that the so-called, “Independent Medical Examination” is neither independent nor medical. Section 2032 makes reference only to a physical examination, and the word independent is nowhere to be found. Under CCP 416.10 Service of Process on Corporation, the IME subpoena may be served on the corporation. 

In Mercury Casualty Co. v. Superior Court of LA (1986) 179 Cal.App.3d 1027, 1033 [225 Cal.Rptr. 100], the Court commented that “the physician appointed to conduct a medical examination under CCP 1005 is not hired for the purpose of being impartial.” In Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1135 [277 Cal.Rptr. 354], the Court noted that when a plaintiff submits to such examination, a work related attorney is not necessary for the Independent Medical Examination. 

The defense doctor will try to develop an inconsistent history on liability or a liability history that shows no prima facie liability or shows contributory fault] or assumption of risk. The defense doctor will also try to develop a history to weaken the damages case. He will try’ to (1) deny the existence of an injury’; (2) show the body movements and forces on the body were too slim to cause any harm or the harm claimed; (3) deny causation and develop a history that shows the problem was preexisting, subsequent and unconnected, or coincidental and not causally related; (4) show plaintiff is malingering or not motivated to get well by not aggressively seeking care and treatment or by not following the care and treatment recommended, or by physical activities that are inconsistent with any serious injury; (5) deny the magnitude of plaintiff’s complaints, minimize the injuries to date by showing an inconsistent history or conduct inconsistent with severe pain and disability, and list all of the activities that plaintiff still engages in; (6) smear plaintiff by showing she lied or concealed other accidents, incidents, conditions, etc.; (7) challenge the prognosis; (8) show no further treatment is needed, or if it is needed, it is very little and will certainly produce a significant or 100 percent healing; (9) minimize the disability and/or the inability to work and earn; (10) criticize the treating physician’s care and treatment; and (11) cast doubt and suspicion and try to pick apart plaintiff’s medical records to show inconsistencies or points of weakness. (Ned Good, Preparing for the Defense Medical Exam and What to Do When It Is Over, Advocate, Sept. 2000.)

Accordingly, it is important to condition plaintiff’s appearance for the examination on defense counsel’s acknowledgment that the examination is not independent, and to file a Motion in Limine precluding the defense or the defense doctor from referring to the examination as independent.

The response

It is essential that, within 20 days after defendant serves notice that plaintiff must appear for a defense examination, plaintiff’s counsel follow the requirements of CCP 1005 by serving a written response that plaintiff will comply with the demand, comply as specifically modified, or refuse to comply. It is recommended that the response address the following issues:

-Conduct of examination only by named doctor:

The examination must be conducted only by the named doctor, including medical history limited to present complaints. No measurements shall be taken by other than the named doctor. No other person may attend on behalf of any defendant. 

– Examination rescheduling:

If the scheduled examination is not at a reasonably convenient date and time for our client and this office, this office will contact the defense examiner’s staff to set the examination at another date and time reasonably close to the originally scheduled date. 

-Examination scope:

The scope of the physical examination will be limited to physical examination of plaintiff’s current complaints regarding _________.

-There will be no reference to an “independent” medical examination:

Code of Civil Procedure section 2032.020 provides for “Physical and Mental Examinations.” Nowhere is the term “independent” used. Assuming the defense wants plaintiff to attend an examination under Section 2032.020, then plaintiff will appear, but it must be referred to at all times, including throughout trial, as a “physical examination” or a “defense physical examination,” or words to that effect, but never as an “independent” medical examination. Nor will the examiner be referred to as “independent. “

-Doctor’s intake forms:

Plaintiff will not fill out any papers in the defense examiner’s office. This includes any intake forms, pain drawings, questionnaires, history forms, or any other documents whatsoever.

-X-rays and other intrusive tests:

In accordance with Code of Civil Procedure section 2032.520, plaintiff will not submit to X-rays or other intrusive tests. If the defense examiner does not have copies of prior films, the attached authorizations will enable the examiner to obtain copies.

– Financial responsibility:

Plaintiff will not assume financial responsibility for any of the medical billings arising as a result of this exam. Any charge for a missed appointment is not within the purview of the examiner or defense counsel to levy. Because there could be any number of good faith reasons for a missed appointment, there will be no stipulated damage charge therefore.

  • History of the underlying incident:

Plaintiff will not discuss how the incident which is the subject of this lawsuit occurred, other than to describe it in general terms. The deposition of plaintiff can be provided, by defense counsel, to the examining doctor. The medical examination cannot and will not become an additional deposition of plaintiff.

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