For many years personal injury attorneys fought back against the concept of "independent" medical exams. We didn't argue that defendants weren't entitled to have a doctor evaluate our clients injuries. Rather, we objected to the absurd concept that a doctor hired by one side to do a medical-legal exam is "independent."

And now that unfortunate label seems to be fading into oblivion. In Rowe v. Wahnow, decided last week by a New York appellate court, plaintiff's auto case was tossed out based on the "IME" reports of the defendant's doctors.

But in dissent comes Justice Douglas McKeon, ripping into the concept that such "IME" reports are actually independent. And he does so with support from New York's Chief Judge, Jonathan Lippman:

...the "independent" prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the "adversarial process" (Bazakos v Lewis, rev'd on other grounds) with Chief Judge Lippman forthrightly observing that "[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee (id. at 6 [Lippman, Ch. J., dissenting).

When I was younger I would routinely run my pen through those parts of the pre-printed Preliminary Conference Orders that had the word "independent." Now the courts were simply looking for dates on when the exams would be done, and when reports would be furnished, but I'd belly-ache about the language. More than a few opposing lawyers and judges would look at me like I was from Mars.

In recent years, however, I get an understanding nod. Enough of us have raised the issue -- and this language is important because we don't want judges referring to these things as "independent" when a jury is sitting in the box -- that the language is now being challenged in the highest halls of justice.

So let me be the first to proclaim that the "independent" medical exam is dead. Sure, it may still take a few years to see it buried altogether, but make no mistake about it, it is on an irreversible course to the trash heap of litigation history.

Labels: Personal Injury