More and more, personal injury lawyers in Maryland accident cases are doing battle over the ‘independent’ medical examination. Attorneys argue over everything from who should conduct the examination, how far the plaintiff should have drive for the examination, to more substantive issues such as the examining doctor’s financial records. However, one thing that is occasionally overlooked by plaintiff’s personal injury lawyers is the fact that their client may have already had such a medical examination before they even became involved in the case if the case involves an uninsured motorist or PIP coverage was utilized.
Most insurance policies have a provision whereby the insurance company can ask for the policyholder to attend a medical examination with a physician of its choosing before any payments are made to the insured. This is can be used as a condition precedent to any insured receiving PIP benefits or uninsured motorist benefits. Does Maryland law allow it? No one really knows for sure.
The Maryland accident lawyer must be careful in cases where PIP has already been paid or where uninsured motorist coverage applies. Often, the insurance claims adjuster has a copy of the report complied by the insurance company’s doctor months or even years before it must be disclosed to the plaintiff’s lawyer (for example, before suit has been filed or before discovery answers are due).
These “condition precedent” type independent medical examinations give the insurance company additional discovery that they would not be entitled to once the case has gone to court, meaning more than one opportunity for a favorable report. Therefore, it is always a good idea for the plaintiff’s accident lawyer to subpoena not only the claim file for the case or suit they are involved in, but also the file of any previous adjuster handling a PIP or other file. Our lawyers at have found that if you get these old files, sometimes the lawyer will get a copy of an independent examination that was favorable to your client, but was not divulged in discovery since it was “not part of the claim file” of your case. It is still discoverable material under Maryland law and could help make your case.