Bernard and family whitewater rafting in Colorado, Summer 2018.
by Bernard D. Nomberg, Partner, The Nomberg Law Firm
What does whitewater river rafting have in common with Independent Medical Examinations (IME)? Both activities can be dangerous if not handled correctly. Much like following the instructions of the rafting guide to safely navigate the river, when an injured worker attends an IME in a workers’ compensation case or for a personal injury case, he should follow the advice of his lawyer to go through it successfully (or not participate at all).
The Role of the IME Doctor
An independent medical exam, commonly referred to as an IME, is conducted by a doctor whose role differs significantly from that of your regular treating physician. While your treating physician is concerned with the treatment of your injuries, an IME doctor is retained to provide additional information about your injury either to clarify specific aspects of your condition or recommend what they believe the best course of treatment should be.
Either party can request an IME, however, be prepared for the other party to object to the request. Typically, in a workers’ comp setting, an IME doctor is retained by your insurance company whenever they feel there is a dispute with any diagnosis or course of treatment by the treating physician. IME’s are typically administered once a treating physician has recommended an expensive procedure, which your insurance deems is unnecessary, or to the extent of any permanent disability. It is not unusual for the IME doctor to render findings or conclusions which differ from that of the treating physician. However, the IME doctor has an ethical duty to provide objective, valid opinions, which are well supported by their clinical experience, regardless of which party retained them for their services
Prior to conducing an IME, the examining physician will have likely reviewed all documents and medical records pertaining to your injuries. Additionally, the IME doctor must be aware of the causation of the injury as well as what the treating physician has referenced as the need for future medical care. The IME doctor is also trying to identify other conditions which could potentially have caused the injury.
The IME exam will likely start out with the doctor asking how the injury happened, relevant medical history and course of treatment to date. The exam will likely include questions outlining whether you, as the injured party, think your condition has been properly diagnosed by your treating physician. You might also be asked about your symptoms and other daily life activities in an attempt for the IME doctor to discredit the injury from being suffered at work. You will likely be asked if you believe to have suffered a permanent disability. A physical exam could be conducted, however, that is not typical in an IME. It is important to note that unlike the doctor-patient relationship which exists with your treating physician, the typical doctor/patient relationship does not exist with an IME doctor
Perceived Bias and the Avoidance of Bias
One of the big issues presenting with IMEs is determining if the opinion by the IME doctor is truly independent of the retaining party. Jurors are skeptical as to which side paid the doctor for their services, thinking that the opinion was influenced by the party who retained the doctor. To avoid jurors completely undermining an opinion, the IME doctor needs to offer their knowledge, experience, and best judgment to all facts of the case, regardless of the source requesting the opinion.
To ensure an unbiased opinion, make sure the opinion rendered by the IME doctor was given after reviewing all medical records and documents to reach an accurate conclusion. Additionally, ensure the doctor that he should not exclude relevant information simply because it favors one side. This will help avoid the perceived bias that many IME opinions carry.
The opinion by the IME doctor needs to be accurate, yet objective and supported by the doctor’s experience and education, regardless of which party requested the IME. Attorneys should specify that they are not hiring the doctor for a specific opinion, but rather for their expertise and objective opinion.
One way to reduce the bias a jury sees through an IME doctor’s opinion is to select a board certified physician. This ensures that this person is not doing this for the money as they are still a practicing physician and are not trying to generate income through IMEs.
David and family whitewater rafting in North Carolina, Summer 2018.
Direct and Cross Exam
Start the direct examination by questioning the doctor on his treatment practice and experience in treating patients with similar injuries sustained by the plaintiff. If the doctor is said to have little or no prior experience treating similar injuries he can be said to lack credibility in understanding the nature and extent of the suffered injuries. This can be one way to try to discredit the testimony by the IME doctor.
Additionally, if the treating doctor received opinions from fellow doctors, this should be pointed out. The IME doctor did not give any other opinion but his own. This could also be used when trying to undermine the opinion by the IME doctor, especially if it differs from the treating physician. Asking the IME doctor about his opinion of the treating physician in the community, his practice, and expertise, can help the treating doctor gain credibility if the opinions differ.
On cross examination, you can question the doctor about either the research or lack thereof to support their opinion. The best way to prepare to cross-examine the opposing party’s physician is to be very familiar with the medical issues of the case and know everything about the expert, including other cases he has administered an IME for
As discussed above, the biggest thing to reiterate with the IME physician is to ensure they are being objective. The doctor is getting paid regardless of which party their opinion tends to side with. Also, ensure your client that they must tell the truth. Nothing will hurt your case more easily than if your client fails to be honest about the truth.
Keep in mind that to a jury, respect for an individual’s credentials and experiences will translate into how the jury takes their medical conclusions. Jurors tend to discount testimony by higher paid experts. Use this to your advantage if you are trying to undermine the opinion by the IME doctor.
Lastly, yet most importantly, both doctors and attorneys have ethical obligations which prevent them from buying or selling medical opinions and both doctors and attorneys need to be aware of potential biases and do what they can to negate them. The chances of the IME coming out in your client’s favor are slim. Try to do everything you can to negate any possible biases to receive the best outcome for your client.
For more information on IMEs, please visit our YouTube channel: https://youtu.be/ykstpZZTRCU. If you have questions about IMEs, work comp or personal injury cases, please give us a call today: (205) 417-4825.
Bernard D. Nomberg has been a lawyer for more than 20 years. Bernard has earned an AV rating from Martindale-Hubbell’s peer-review rating. He has been selected a Super Lawyer by Super Lawyers Magazine as well as a Top Lawyer by B-Metro Magazine. Bernard is the immediate past Chair of the Alabama State Bar’s Workers’ Compensation Section.