An “independent medical examination” isn’t independent, and it’s not a real medical exam. Here are some things you can do to protect your rights.
When you bring a personal injury claim or file a personal injury lawsuit, you might be required to have something called an "independent medical examination" (IME). But don't be fooled: An IME isn't independent, and chances are it won't be like any medical exam you've had before. The IME doctor isn't interested in helping you or your case.
You should prepare for your IME. We'll give you some tips on how to be ready and things you can do during and after the IME to protect your rights.
(The rules we discuss here generally apply to personal injury claims including, for example, car accidents, slip and fall cases, injuries caused by dangerous products, and more. If you have to attend an IME for a workers' compensation claim or a disability claim, different rules might apply.)
What Is an IME?
First things first. An "IME" should be called what it is: A defense medical exam. The insurance company or its lawyer wants you to have a medical examination by a doctor of the company's choosing. Why? The purpose of the IME is simple: To help the insurance company defend (meaning deny, or pay as little as possible for) your personal injury claim.
The insurance company will set up and should pay for the IME, which will happen at the examining doctor's office. Here are some things about an IME you should know:
- the doctor isn't your doctor
- you'll have to provide your medical records, and
- you might have other rights under state law or the court rules.
The Doctor Isn't Your Doctor
Above all else, understand this: The IME doctor is the insurance company's doctor, not yours. The insurance company probably has an ongoing relationship with the doctor. It knows the doctor will write an exam report that helps the company and hurts you. That's what the doctor is being paid to do.
Here are a couple of other things to keep in mind.
- Anything you say (or do) can be used against you. The IME doctor will report to the insurance company anything you say or do that might harm your personal injury claim. You should be courteous and professional, but don't be overly friendly, volunteer information, or make small talk.
- The doctor won't treat you. An IME doctor isn't hired to treat you, prescribe medications, or write you a work excuse. Don't ask the doctor to do any of these things. If you ask for pain medication, the doctor might report to the insurer that you exhibited "drug-seeking behaviors." A request for a work excuse might show up in the IME report as "malingering behavior."
You'll Have to Provide Your Medical Records
The IME doctor is entitled to review the medical records related to your personal injury claim. Most often, the insurance company or its lawyer will ask you to sign a release authorizing them to get your records. Here are some pointers:
- don't sign a blank, open-ended release
- sign a separate release naming each provider and specify the range of treatment dates covered
- be sure to put an expiration date on each release, and
- ask your providers to send you a copy of any records they send to the insurer.
The insurance company typically wants the IME doctor to go on a fishing expedition through your health history in search of ways to pay less for your claim. Expect the other side to argue with you over how many past years' records they're entitled to get.
If the insurance company or its lawyer wants to fight over your medical records, you should get advice from an experienced lawyer.
Other State Law and Court Rules
Your state law and—if you've filed a lawsuit—the court's "rules of civil procedure" (rules that govern civil lawsuits) might have more to say about your IME. Here are some things to look for:
- odds are you'll only be required to have one IME, unless the insurance company or its lawyer can come up with a good reason for you to have more than one
- the IME has to be with a doctor who's within a reasonable distance of your home
- you might be allowed to bring someone with you to the exam—your lawyer, a doctor or nurse, or a friend or relative—and if it's allowed, you should
- you might be allowed to record the exam (and if you're allowed to, you should)
- the insurance company usually has to reimburse your travel costs (typically mileage), and
- you normally have a right to a copy of the examining doctor's report.
When Can You Be Required to Have an IME?
You can be required to have an IME in a couple of different circumstances:
- you've brought a claim against your own insurance policy, or
- you've filed a personal injury lawsuit in court.
Claim Against Your Own Insurance Policy
You might have to undergo an IME when you bring a claim for benefits under your own car insurance policy (sometimes called a "first-party claim"). For example, suppose you were hurt by an uninsured driver and you're claiming uninsured motorist benefits under your policy. Or maybe you live in a no-fault state and you're making a claim for personal injury protection benefits. Your insurance company might ask that you go for an IME.
Your auto policy likely requires that you attend an IME at the insurance company's request and expense. If you refuse, you've violated (in legal terms, "breached") your insurance contract, giving the insurer grounds to deny your claim.
You've Filed a Personal Injury Lawsuit
When you file a lawsuit to collect damages from someone who caused you injuries (sometimes called a "third-party claim") or to collect benefits for your first-party claim, you're required to participate in a process called "discovery." During discovery, the insurance company's lawyer might ask you to have an IME.
In most states, the rules of civil procedure spell out when you can be required to attend an IME. If you refuse to have an IME that's required by the rules, the court can penalize you. (To get help finding or understanding the court rules, consult with an experienced personal injury lawyer.)
How Will Your IME Be Used?
In most cases, the insurance company or its lawyer will try to use an IME for any of three purposes:
- to prove that you weren't injured
- to prove that your injuries weren't caused by the accident as you claim, and
- to discredit you.
To Prove You Weren't Injured
The doctor will be looking for evidence that you weren't injured, or if you were injured, that your injuries are nowhere near as painful or disabling as you claim. For example, if you claim a low back injury, the doctor might ask you to do walking or leg-lifting tests that are designed to reproduce low back injury pain. If you don't respond as expected, the doctor could claim you're faking or exaggerating your injuries.
To Prove That Your Injuries Weren't Caused by the Accident as You Claim
If the doctor can't prove that you weren't hurt, the next best thing is to show that your injury was caused by something that gets the insurance company off the hook. In legal terms, the doctor is looking to defeat "causation."
Let's return to our low-back injury example. Does your medical history include low back problems? Do you play golf, run, or lift weights? Do you work at a job that requires repetitive bending, stooping, lifting, or carrying? The doctor could point to things like these as proof that your injury was caused by something that doesn't require the insurer to pay.
To Discredit You
If the doctor can't defeat injury or causation, what's left is to discredit you—to make you look like a liar, or someone who's just looking to avoid work, or a claimant who wants to cash in on a nonexistent or minor injury.
For example, the doctor's report might point to inconsistencies between what you reported during the IME and what you told a treating doctor. The doctor might report that you walked, stood, and sat normally while in the waiting room but then limped or complained of pain or limitations during the exam. If it makes you look bad, expect it to show up in the IME report.
How to Prepare for an IME
Ideally, you'll prepare for an IME with a personal injury lawyer who can help you know what to expect. For example, an experienced lawyer can do role-playing exercises with you, playing the part of the doctor and asking you questions. After each session, the lawyer can explain where you did well and where you need to improve. The lawyer can also give you some ideas about what tests or exercises the doctor might ask you to perform.
Review Your Medical Records
At a minimum, to prepare for your IME you should get a complete copy of all the medical records you provided to the other side and you should review them carefully. Among other things, the doctor will be looking for inconsistencies between what you report during the exam and what's recorded in your records. You want to be as consistent as possible.
You'll want to refresh your memory about past injuries and conditions that appear in your medical history so you can be prepared to answer questions about them. If you're surprised by things that come up during the exam, you're more likely to give answers or explanations that hurt your claim.
Review Other Statements Too
Finally, if you've given any prior statements about your injury, how it happened, your treatment, or your recovery, review copies of those statements, too. Chances are the insurance company has given copies of your statements to the IME doctor.
What to Expect During the IME
Let's begin with what not to expect during your IME. Don't expect a complete medical exam like you'd get from a treating doctor. The IME isn't really about your overall health.
In addition, don't expect the doctor to discuss or explain to you their findings once the exam is finished. The doctor will prepare a written exam report and send it to the insurance company or the company's lawyer. You'll get a copy of the report from them.
Expect to Be Questioned
The specifics will vary from one examiner to the next, and some of the questioning might be done by a member of the doctor's staff. In general, you should expect to be asked about some or all of these topics:
- your health and medical history, specifically including all prior injuries from any causes (work, slip and fall, motor vehicle, sports or recreation activities, or others)
- all treatments you received for those prior injuries
- whether you completely recovered from your prior injuries and, if not, any lasting disabilities you experience
- how the incident giving rise to your claim happened
- how you were injured in the incident
- a detailed description of each injury you claim to have suffered because of the incident
- all medical treatments you've received for those injuries, including whether the treatments helped you get better or provided any relief from your symptoms
- if you claim to still have pain from your injuries, a detailed description of the pain, when and how often you experience it, what brings it on, and what (if anything) provides pain relief
- whether you feel you're disabled from working or limited in your ability to perform daily activities, and if so, why
- whether you were evaluated by a vocational rehabilitation specialist because of your injuries and, if so, whether you were found to have work limitations
- how long you were off work after you were injured, and whether you returned to work with or without limitations
- whether you expect to get future medical treatment for your injuries
- whether you think your ability to work in the future will be impacted by your injuries, and
- any accidents or injuries you suffered after the incident, whether you've been treated for any of those injuries, and whether you experience disabilities or limitations because of them.
Expect to Be Examined
Chances are the IME doctor will do some kind of physical examination, but don't be surprised if it's remarkably brief. The purpose of the physical examination isn't to determine the state of your health. It's to look for evidence that you aren't really injured, that your symptoms aren't the insurance company's responsibility, or to discredit you.
Things to Do (and Not Do) During the IME
While you should be courteous and professional (even if the doctor isn't), don't be chatty, try to make small talk, or volunteer information. Answer all the doctor's questions completely and truthfully, then stop talking. Don't offer explanations unless you're asked. If you're asked to explain something, keep it short, truthful, and to the point.
The IME isn't your chance to tell your side of the story. That opportunity will come at another time. If you're in doubt about whether you should say or do something during the IME, keep this in mind: Nothing you say or do in the IME will win your case, but you might say or do something to lose it (or decrease its value).
Steps You Can Take After the IME
Once the IME is finished, there's probably more to be done. Ideally, once again, you're working with an experienced personal injury lawyer who will know what steps to take to protect your rights. Here are a few things to consider.
Keep Detailed Notes
Write down everything you can recall about what the doctor and the doctor's staff said and did while you were in the office. Note how long you were questioned, as well as any topics that were emphasized during the questioning. Make a note of how long the doctor's physical exam lasted, what the doctor did, what you were asked to do, and anything the doctor might have said during the exam.
Make notes about any errors in the IME report. If the report includes medical statements or conclusions that differ from what your treating doctors have said, be sure to highlight those differences. You (or your lawyer) can raise these errors when trying to negotiate a settlement of your claim.
If you've filed a lawsuit, you can probably use your notes to refresh your memory if you have to testify in a deposition or at trial. But the court rules will require that you provide a copy of your notes to the insurance company's lawyer. Be sure your notes are truthful, factual, and accurate.
Get Information About the IME Doctor
You want to find out about the IME doctor's relationship with the insurance company and its lawyers. You also want to know how much time the doctor spends, and how much money the doctor earns, doing IMEs as compared to doing actual patient care.
If you've filed a lawsuit, your lawyer (if you have one) will ask about these things during discovery. If you're handling the case on your own, you should send the other side interrogatories (written questions that must be answered under oath and in writing) asking:
- how many IMEs the doctor has done for the insurance company or its lawyer within the last five years
- how many IMEs the doctor has done for claimants or plaintiffs' lawyers during that same time period
- how much the doctor charges for an IME
- how many IMEs the doctor does in a typical month
- what percentage of the doctor's time is spent doing IMEs as opposed to doing hands-on patient care, and
- what percentage of the doctor's total income comes from doing IMEs as opposed to doing hands-on patient care.
Send a Copy of the Report to Your Treating Doctor
Your lawyer might advise you to ask your treating doctor to review the IME report for medical accuracy. If your doctor identifies problems with the report, set up a phone call so you (or better yet, your lawyer) can discuss them. If your doctor's concerns are significant, consider asking the doctor to write a letter describing the problems and inaccuracies.
Note that if you've filed a lawsuit, you might have to let the other side know that your treating doctor disagrees with the IME doctor's report.
Consider Hiring Your Own Independent Examining Doctor
If the IME report is particularly bad and the insurance company or its lawyer is relying on it to make a low settlement offer, give some thought to hiring an independent, non-treating doctor of your own to examine you and write a report. You'll want an examining doctor who's familiar with how IME doctors work, and who understands how to write a report that can counter the harm a bad IME report can do.
Before taking this step, you should consult with an experienced personal injury lawyer.
Your Next Steps
An IME can be a crucial part of your personal injury claim or lawsuit. The purpose of an IME is to give the insurance company reasons to deny your claim, reduce the amount the insurer pays you to settle, or convince a jury to decide against you. There's a lot at stake—far too much to go it alone.
You need an experienced personal injury lawyer to help you prepare for the IME, guide you through the process, and do damage control once the IME doctor issues a report. You're not just up against the insurance company's doctor—you're up against its lawyers, too.
Here's how to find an experienced personal injury lawyer who's right for you and your case.
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