There is no Such Thing as an Independent Medical Examination
If you are injured from a motor vehicle accident in New York, and make a claim for No Fault benefits through your own insurance company or against the driver who caused the accident, the insurance company has the right to have you examined by a doctor of its choice. This is generally called an “independent” medical examination. I refuse to use the word “independent” when referring to these exams, even though they are routinely referred to as IME’s. I call them “Insurance Medical Exams,” or better yet, DME‘s or “Defense Medical Exams.” The bottom line is that these doctors are hired for one purpose and one purpose only – to either deny or minimize your New York injury claim.
Whatever it’s called, the doctor who performs the exam will testify about your injuries for the insurance company. Make no mistake- the insurance company pays the doctor’s fee. The doctor is examining you not for the purpose of treatment, nor to help you find relief from your injuries. Rather, it is the doctor’s job to obtain information that will either allow the insurance company to terminate its obligation to pay your medical bills or to cast doubt on your claim of injury should your case go to trial.
This examination, and the doctor, are anything but independent. The insurance companies carefully and deliberately pick which doctors they want to perform specific evaluations. Most of these doctors have frequently done work for that insurance company and typically work for insurance companies exclusively. These doctors solicit business from the insurance companies by offering to do such ‘independent’ medical evaluations for them knowing that the insurance company will not refer patients to the doctor again unless the reports are favorable to the insurance company. This means that in order to stay in business, this ‘independent’ doctor, performing an ‘independent’ medical examination must be in the business of writing reports which negate injury claims, and serve only to bolster the insurance company’s denial of your medical benefits. If this ‘independent’ doctor fails to write reports in accordance with the insurance carrier’s specifications, then that doctor will not be referred any more cases to review, and there goes his or her meal ticket.Actions Speak Louder Than Words
Everything you do in the doctor’s office will be observed and recorded by the doctor and staff. The doctor often incorporates simple activities, such as sitting on the examining table or taking your shirt off, as part of their mobility testing. So, while you might think the doctor never saw you move, s/he did observe you take off your jacket and pull your shirt over your head, demonstrating certain mobility techniques. All of those observations are part of the exam, although not as obvious to you as other parts of the physical exam itself. Be particularly aware of surveillance persons in the waiting room. One particular insurance company, in a letter addressed to the IME physician before the exam, asked the doctor to “watch” people in the waiting room and document things such as opening up doors, sitting waiting for the evaluation, walking within the facility, etc. Sometimes the IME physician may even drop something on purpose to see if you bend to pick it up. Remain observant and watchful of everything you do when entering the offices of an IME physician. Stay seated and don’t walk around. The last time I accompanied a client to an IME, the doctor, who called a different person watched her get out of her chair and he commented, “Wow! You popped up like a cork!” You can be sure that observation made its way into the doctor’s report.Be on Time
Keep your appointment. Many insurance companies schedule exams through agencies that supply doctors who are willing to perform these exams for insurance companies. Your failure to attend the exam may result in your being responsible for payment of the doctor’s fee or the suspension of payment of your medical bills.Be Honest
Honesty is the best policy. The best way to “connect” with the doctor is to be polite, cooperative, and above all, truthful. If you lie or fake an injury during the exam, the doctor will recognize your deceit and mention it prominently in the report. Try to appear open and forthright by providing helpful and straightforward answers. Also, attempt to make eye contact whenever possible. Although you need to pay attention to the doctor’s questions so you can answer them carefully, don’t appear nervous. After all, you know the answers to the questions, so try to stay relaxed.Prepare for the IME Exam
Get organized! One way to strengthen your case and be more relaxed during the exam is to gather your thoughts so you can present your medical history in a logical and concise, but complete manner. Here are some topics you’ll cover:
- Your medical history, including prior injuries;
- How the accident occurred;
- What areas of your body were injured;
- Your primary symptoms;
- When your injuries cause you pain;
- Movements or activities that aggravate your injuries and cause pain or discomfort;
- Treatment or medication that makes your injuries feel better; and
- Activities that have been affected or limited.
Once you are called in for examination the IME doctor will typically conduct a patient interview to learn the history of the accident and medical condition, and then conduct a medical examination. At some point in time, the IME doctor is also likely to consult other medical records provided before your arrival in relation to the plaintiff’s (your) case. During this process, the IME doctor looks for a variety of factors about you, the injury victim, including:
General Appearance – The doctor will observe you not only during the examination, but while you walk in the examination room, how you stand, whether you have any difficulty climbing onto the examination table, whether you show any signs of distress while sitting on the examination table, how you dress and undress yourself, your weight and personal hygiene, and anything else that the IME doctor believes relevant to your injury or condition.
Meeting the Doctor- The IME doctor will ask questions to formulate opinions about your injuries. Be careful that you understand each question before you answer it. For example, if the doctor asks, “How do you feel now?” you should find out if he wants to know how you feel that minute or at this point after the accident. You may feel pretty well at that particular moment, but may have had pain associated with your injury earlier in the day, so it’s important to be specific and accurate in your answers. Take time to answer all questions carefully. If a question is unclear or confusing, don’t be afraid to ask the doctor to explain or rephrase the question before you answer. If you make a mistake, correct it immediately. Avoid unnecessary elaboration. Remember that the doctor is hired by the insurance company to help its case. So, while you should always answer a question politely, honestly, and completely, don’t ramble on or elaborate unnecessarily.
Signs of Deception – The IME doctor will typically be on high alert for any sign of deception or exaggeration, and can be expected to report any impression that you intentionally or unintentionally exaggerate any symptoms.
Objective Signs of Injury – The doctor will typically review any medical imaging studies, such as x-rays, MRI reports, CT scans, and EMG nerve conduction studies, to try to find objective manifestations of injury – that is, objectively measurable damage or injury to the plaintiff’s body. The doctor will also evaluate whether your subjective symptoms of pain and discomfort are consistent with the objectively verifiable manifestations of the injury.
Subjective Signs of Injury – The doctor will often perform tests which require you to provide subjective indications of pain, discomfort, sensitivity or insensitivity. For example, a doctor examining for a lower back condition may have the patient perform a variety of movements which stretch or turn the back, and note the point at which the patient starts to report pain and the point where movement becomes limited by pain. The doctor may test the subjective manifestations in several ways, or at more than one point during the examination, to see if any claimed pain level or point of disability remains consistent.
Other Contributing Factors – The IME doctor can be expected to inquire about any other ailments or injuries, including any which have occurred prior to or since the accident, which may have somehow contributed to the injury, or aggravated the injury or impaired recovery since the time of the accident. The doctor will also likely address any lifestyle factors discovered within this process, such as drinking, smoking, overeating, and recreational drug use, which may somehow contribute to the injury.What You Should do at an IME
- Be honest and cooperative with the doctor.
- Be pleasant. At the same time, you should not behave in such a fashion that the doctor can say you were laughing during the examination.
- Be concerned. Be serious. Be polite. Give the doctor accurate, but brief, history on how your accident or injury occurred.
- Give the doctor an accurate history of your job details and what you do in terms of lifting, bending, stooping, carrying, and walking.
- If the doctor asks you about any previous injuries or illnesses you had before the present one, be honest and tell him the nature of any injuries you had, and whether you had surgery in connection with those previous injuries. On the other hand, do not volunteer information.
- If the doctor asks if you have had any previous injury claims, you should say to him, “I’ve had previous injuries” (if that is true).
- If you are totally disabled, explain to the doctor that if there was any way you could be back at work, you would be there.
- Keep copies of any document you fill out or sign at the IME’s office. Don’t assume the IME will keep your questionnaire. Many don’t, and that may be the only proof you have that you told the doctor about some part of your medical history or injury. So ask for keep your own copy.
This insurance medical exam Doctor is going to ask you many questions in great detail. Keep in mind to answer his or her questions as simply as possible. Yes or no answers are the best you can give. Try not to elaborate on any subject. Never guess! If you are unsure or do not know the answer to a question, simply state “I do not know”. If the physician is asking questions about your doctor, or your doctor’s opinion, tell the exam doctor to look in the file that was provided to him or her, all that information should be in it. It is also ok, if you are uncomfortable, to tell the exam doctor that all of your injury information is also in the file. You can keep repeating this as much as needed. Independent medical examination physicians will try to get you to sing like a canary in hopes to get you to say something different.
Anytime this physician touches you or makes you do something that hurts tell him or her loudly! If you do not make it known that what is happening is causing you pain, the doctor will write in his or her report that the injured worker did not have any pain. Make your pain known!
Be aware that the doctor is sometimes performing the same test on you in more than one fashion and in more than one way. For example, the doctor may test your legs when you are sitting up and when you are lying down. This is the same test. Therefore, if you complain of pain inconsistently, the doctor is going to make note of it. Let the truth come out and you will obtain a more favorable report from the doctor.
If you routinely wear them, please wear hand/arm braces and use any rehabilitative assistant devices like canes, walkers etc. at least two days before the exam, the day of, and two days after the exam. Be watchful and mindful you are likely to be under surveillance for these days as well. Look for strangers in your neighborhood or unfamiliar cars following you during that time period. If you are on good terms with your neighbors, ask them to alert you if they are contacted by anyone out of the ordinary. Insurance companies frequently use a ruse whereby they call you on the telephone and tell you they want to deliver some sort of mail or package. Be careful of strange phone calls.
During the course of your exam, keep track of the time the doctor spends with you and what is being done during each time period. You can do this out in the open. Feel free to take notes on your smart phone or on a piece of paper. For example:
- 2:00 p.m. Arrive at the doctor’s office.
- 2:15 p.m. Appointment time
- 2:30 p.m. Go to examining room
- 2:40 p.m. Doctor arrives in examining room.
- 3:00 p.m. Interview ends, told to undress, doctor leaves
- 3:10 p.m. Doctor returns and begins exam
- 3:15 p.m. Examination over
- 3:20 p.m. Leave clinic
Note every measurement of range of motion at the time the doctor is taking it. Have the doctor read you the measurements and write them down. When he’s asking you to turn your head to the right, ask, “What is the measurement?” and write the body part, the type of motion the doctor is performing and the measurement he took and WRITE IT DOWN. Why do this? Because insurance company doctors have a way of reporting that all measurements were normal if no one is questioning them.What not to do at an IME
- Do not try to out-smart the doctor. They didn’t go through all those years of medical school and residency to be fooled by someone who says ouch every time they move. Those patients get less sympathy and even less credibility for their complaints.
- Do not volunteer any information not requested.
- Do not discuss who is at fault in your case.
- Do not discuss settlement of your case.
- Do not allow the doctor to take X-rays or conduct other diagnostic tests.
- Do not take any written tests.
- Do not go to any other doctors or facilities without your attorney’s approval.
- Do not lie. That can undermine your whole case.
- Do not drive yourself to the visit. Try to have your spouse, friend or neighbor drive you.
- Do not talk about your accident, injuries, insurance company or case in elevators, common areas or doctor’s waiting room.
- Do not wear dangling jewelry or earrings.
- Do not come to the doctor with hands that look they are dirty from working on a car or changing the oil.
- Do not come to the doctor with elaborately painted fingernails (especially if you are claiming carpal tunnel or any other type of chronic pain syndrome).
- Do not jump on and off of the examination table at the doctor’s office.
- Do not come in tight jeans or cowboy boots. Men, don’t come unshaven. Ladies, don’t come with make-up on or wearing high heels.
- Do not leave the doctor’s office in a running trot or quick walk and jump into your car, because the doctor is probably watching you from his or her window.
- Do not use medical jargon or fancy terminology when discussing your case or describing your symptoms. If you are complaining of a neck injury, don’t twist your head back and forth when the doctor is moving about the room in an effort to follow his movements.
- Do not discuss money or any plans of retirement with the doctor.
- Do not discuss your marital situation. Your marital situation is not relevant to the present examination.
- Do not exaggerate your problems.
- Do not moan, groan and wince or grimace in pain every time the doctor touches you.
- No matter how lightly or heavily the doctor may touch you, be natural.
- Do not ask the doctor for medication or pain pills.
- Do not talk to the doctor about the insurance carrier, attorneys or the adjusters. If you have a bad back, don’t bend down and untie your shoes. Wear loafers and kick them off/slide them on.
- Do not discuss with the doctor the amount of your claim or the amount of wages you used to make. Politely decline to do so by saying that the insurance company has that information.
- Do not discuss with the doctor whether you have any hearings coming up on your case.
- Do not discuss what you deserve for a settlement or your plans for spending the money you may get.
- Do Not Expect A Fair Report. While a few IME doctors are highly professional, and seek to actually provide an objective evaluation, the vast majority of them know that they are being paid by the insurance company, which pay their bills and expect that the position of the defense will be improved as a consequence of the IME report. If the IME doctor prepares a report you believe to be unfair, let your lawyer worry about it. You need to be principally concerned with what your treating health care providers tell you about your condition.
Once the exam is over and you have left the doctor’s office, prepare a written summary containing the following information in as much detail as possible:
- What the doctor said to you;
- What you answered;
- What, if anything, was dictated into a tape recorder by the doctor during the exam;
- What tests or procedures the doctor performed;
- How much time the doctor spent with you;
- What was done during each time period; and
- Any inappropriate or unusual questions or comments made by the doctor.
The doctor will prepare a report for the insurance company describing his examination of you, along with his findings and opinions. It is extremely rare for the doctor to determine that you were injured in the accident or recommend any further treatment.
Try to remember what goes on during the exam in as much detail as possible. It is extremely important to note the exact amount of time the doctor spends actually examining you because the doctor will prepare a detailed report regarding your injuries despite having only spent a short time actually examining you.
As soon as you are home, sit down and write down every detail you can recall of your exam (i.e. time spent with a nurse or doctor, questions asked by the doctor and your answers, tests performed by the doctor, etc.).
We understand that you cannot remember everything, but do the best you can. Nonetheless, your attorney is most effective when he/she has as much information as possible regarding your case. You must provide that information to the attorney. He/she is your advocate, not your private investigator. You are their eyes and ears, so give them as much information as possible- after all, the insurance carrier is doing the same thing to opposing counsel.
If you are injured in an accident and have questions about Insurance Medical Examinations, feel free to contact me.