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.
I think you’re off base here and reading much too much into the dissent. It seems to me that the dissenter’s biggest problem was the use of the No-Fault IME as opposed to a liability IME.
A doctor is a doctor is a doctor and if a doctor offered an opinion on the plaintiff’s condition, those opinions need and should be taken into consideration. Now, if 3 IME’s were done by the same doctor and only one was brought forward by the defendant, blame the plaintiff attorney’s incompetence for not submitting the other reports.
I think there needs to be a better process put in place that is fair to both plaintiff and defendant but I don’t see the “independent” part disappearing any time soon.
IMEs are adversarial, even in no-fault. Same with peer-reviews. Especially peer-reviews. Appellate Term decisions allow defendants to have one doctor testify as to another’s peer-review. I’ve had those re-peers testify that they agreed to testify, before reviewing any medical records. One in particular, agreed to testify the night before the trial, and never reviewed the records until a few hours before the trial.
No-Fault IME doctors understand that unless they cut off benefits, they don’t get to testify. And of course, if they don’t testify, they get paid a pittance. The going rate for a no-fault IME is far less than you’d think.
Everyone should stop with the winking.
Sorry for the rant. This is my second of the day. Should have had more coffee, I guess.
I think that we can agree that a doctor that finds 80% of the people s/he examines for an insurance company are badly injured is less likely to get as much future business than one that finds only 20% of the people injured.
Claiming that a “A doctor is a doctor is a doctor” is just turning a blind eye to what is going on.
I was never contacted for an IME. They had 90 days to rsvp but never heard a word. What is this about? We are going to trial.
Turk…are you really spinning your comments about the IME’s impace in theRowe v. Wanhow case that way? The IME was not the death blow to the defendants case at all, moreover it’s the lack of (current)substantial diagnostic testing. So of course the auto insurance company is going to be found more credible. Unless I’m missing something here?
Brad:
My comments are directed toward the lingo that is used (calling the exams “independent”) and not based on any particular test or any particular case.
It was an issue here due to the McKeon dissent and Chief Judge Lippman’s commentary on the subject.
I find it amusing that the industry still calls defense medical examinations IME’s. If the defense refers to such an examination in a personal injury case, certainly it is an Insurance Medical Examination (if anything). The tide is changing and the Plaintiffs bars are gaining ground in exposing defense medical examiners.