A few days ago, I wrote about a judge’s article entitled Alice in Discovery Land (A Practical Guide to Recurrent Discovery Problems) that appeared years ago in Maryland Litigator, quoting Judge Smith’s comment about the oxymoronic phrase independent medical exam.
Counsel on both sides of the aisle have their own unique problems. One of the enormous problems the insurance companies have is getting credible medical experts to testify at trial. They are in a catch-22: they need doctors who regularly testify because of the volume of cases they have, but doctors who will have spent much of their practice testifying for insurance companies have little credibility. As a result, most of their experts are deeply wedded to the insurance companies, a fact rarely lost on jurors.
When the defense lawyer asks for an IME, we send out a list of conditions before agreeing to the exam. We also subpoena the doctor’s records. In most cases, the doctor refused to respond to the subpoena because they do not want to reveal the extent to which they are wedded to litigation related work and, specifically, to the insurance companies. The defendant’s lawyer is forced to withdraw the expert.