Independent Medical Examination

Is A Rule 35 Exam an "IME" or a "Defense Exam" or Something Else?

Medical Examination (called independent medical exam or defense exam depending on the context and on who's talking) is often thought of as a discovery device provided by the Rules of Civil Procedure (Rule 35). In practice, most medical examinations are handled by informal agreement between the attorneys and not by the judicially supervised method contained in the Rules.

The process described in the Rules is so cumbersome and time-consuming that parties will often want to agree on the terms of the examination and then file a stipulation or a consent order which records the agreement.

Choice of Doctor Can Be A Sticking Point

The most contentious part of any agreement for a physical or mental examination is the choice of the examining doctor. The injured plaintiff would prefer not to visit a doctor who is an insurance company shill. The defendant does not want to agree to have the examination conducted by a doctor who is a known crusader for plaintiff's attorneys and their clients.

Extreme positions each side may take with regard to selection of physician would typically involve the defendant asserting that the Rules require that the plaintiff must be examined by a physician of the defendant's choosing, while the plaintiff will assert the exact opposite. Once the contentious combatants arrive at these these positions, an agreement is often impossible and the issue is probably going to be resolved by the court in a formal motion.

To negotiate an effective agreement for your client, you need to know what a court would decide and measure your concessions against that standard.

One interpretation of Rule 35 embraces the adversary process to allow one opponent (normally the defendant) to force the other opponent to submit to the physical examination by a doctor selected by and paid by the moving party.

According to the Rules, the judge, not the movant, has complete control over the selection of examiner. So, it is important whether a particular judge views Rule 35 as establishing a procedure for a true independent medical examination, free of all bias, or whether the judge views Rule 35 as a method for forcing one party to submit to examination by the other party's expert, regardless of bias.

The overlay to all of this is the almost complete unwillingness of the medical profession to become involved in litigation, regardless of the hourly compensation involved. So, even though the judge has complete control, and even if the judge can be persuaded that Rule 35 contemplates an "independent" examnination, he is going to exercise it only over the pool of potential examiners proposed by the parties. (Unless you know a judge who is willing to break out the Yellow Pages and start making cold calls to physicians asking them if they want to get involved in a nasty piece of litigation where the lawyers can't agree on anything. Fat chance, huh?)

This means that you have to know or find one or more doctors who are willing to become involved. Naturally, you'd like a doctor who is predisposed to your client's favor, but the risk you run is that if the opposing party objects and proposes another doctor who is demonstrably more impartial or more qualified, then the judge may side with your opponent. Remember, that the movant must show good cause for the examination. It may be more difficult for a defendant to show good cause where the doctor proposed by the defendant derives a significant portion of his income from defense expert services.

I believe that most judges are going to favor giving the defendant the "IME" physician of his choice, since the plaintiff can presumably "doctor-shop" to his heart's content for his own medical evidence. Even so, there may be no good cause for new x-rays or other testing if the medical file is already well-documented.

Most IME agreements will not involve such serious disagreement. Most doctors are not known crusaders for either side, so most attorneys in most cases will be able to come to some agreement short of court involvement.

Additional Strategy Considerations: (1)Don't Let Your "Agreement" Come Back to Bite You and (2)Look For Support In the IME Doctor's Testimony

When the plaintiff-examinee's attorney contemplates a proposed agreement, there may be some concern that the defense attorney will later play the cooperation against the plaintiff by saying that the plaintiff's attorney "agreed" that the IME doctor was qualified and impartial. My only thoughts on this are that the plaintiff's attorney should either refuse to agree or, should coopt the argument by a written stipulation.

In any situation, and especially in the stipulation mentioned directly above, the plaintiff's attorney may want to withhold premature attack of the IME doctor's qualifications because all or part of the final opinion could come back favorable to the plaintiff. Chances of that happening are slim, however, because in most situations the defense attorney has already submitted voluminous documentation for review (either to the IME doctor or a consulting expert physician) for a preliminary opinion.

Attend and Videotape If You Can

Another issue which may be the subject of contention in an agreement is whether the examinee's attorney may be present during the examination. The examinee's attorney will want to attend the examination as part of the preparation of the cross-examination of that physician. By seeing the manner and detail of the examination, the examinee's attorney can more effectively remain in control of the cross of that doctor. Presumably, attendance at an examination is within the discretion of the court. I am not aware of any rule about who can attend. Maybe there is a case somewhere on that point.

Rule 35 Casts Its Shadow On Agreements, Not Just Motions

Rule 35 is important to read, even if you never intend to file a motion for physical examination. Section (b)(3) applies to examinations made by agreement. That section involves the production of written reports of the examination and the waiver of privilege that results from a request for the reports.

Physicians Only! Don't Get Pseudoscience Suckered

Rule 35 only allows for physician examination. So do not agree to examination by one who does not hold a medical license.

Beware of The UIM/UM Trap

As a final note, a plaintiff's attorney should be especially careful in cases where the UM or UIM carrier requests an examination of the person. Remember that the UM-type of claim is a first party claim based on contract. The contract contains written duties which the insured must follow. If it's stated in the policy (and it is! -see the section on Duties of Insured Following Loss), then the insured claimant may be under a duty to submit to examinations. Failure to comply with this duty may void the coverage, particularly if the insurer can show that the failure prejudiced the investigation. There are cases on this in North Carolina. I will post some cites under this topic the next time I run across them.

Copyright © 2000 Robert P. Holmes

Raleigh, NC

919-787-6360

holmes23@bellsouth.net

-- Anonymous, January 13, 2000

Answers

test there a case involving testimony by a neuropsychologist at 111 nc 222 test thread

-- Anonymous, December 13, 2000