Medical Exams in Litigation

          If you are dealing with a bodily injury claim in a lawsuit, the injured party will probably be examined by his treating physician as well as by a doctor retained by the other side. I have handled hundreds of claims for both plaintiffs and defendants and can tell you that there is commonly dispute between the parties as to the extent and severity of the injuries. It has appeared to me that over the almost thirty years that I have been doing this that these disputes have become more frequent and dramatic. I have thought that this was due to some doctors manipulating their reports and now there is even more evidence to support this view.

          An article appearing in the April 1, 2009, edition of The New York Times entitled “Exams of Injured Workers Fuel Mutual Mistrust,” exposes credible evidence supporting the view that doctors are abusing the trust the system has placed upon them. Sadly, the report chronicles the dishonest reporting of several doctors who believe that they are pressured by insurance carriers to tilt their reports in the carriers’ favor to an extent that is pretty clearly unethical. I have no real problem with a conservative evaluation by a doctor retained by the defense, just as I am not surprised by a report being more favorable to the plaintiff when it is the treating physician. However, this article details doctors being recorded as finding disabling problems on examination which they do not include in their reports. One can only conclude that the doctors are motivated by greed when they have a claimant go into an exam room and “sit for a few minutes – and out comes a six-page detailed exam that [the doctor] never did.”

          When I am the defense attorney handling the defense of a bodily injury claim, I always advise my client to retain an honest, credible doctor who will do a thorough examination and write an honest, credible report. This is the best way to maximize the use of a so-called independent medical examination. Likewise, I do not encourage the treating physician to exaggerate or embellish the plaintiffs’ injuries when I am representing them. In the end it can destroy the doctor’s credibility if the doctor embellishes the claims and it reflects negatively upon the client as well.

          When done by either party this behavior only complicates the task of determining the appropriate amount of compensation for the injured party. I recently told a claims adjuster that his attorney had chosen a doctor to perform the defense examination who was not trustworthy and his opinions were valueless in determining the merits of the claim. His reports never appeared even-handed and often read virtually the same, case after case. Given that we both had the doctor’s report in front of us by this time, he knew I was telling him the truth. I told him that I had cautioned his counsel against using this particular doctor when he made the appointment as it would only cause the case to be more prolonged that necessary. Unfortunately, his counsel did not listen to me.