Independent Medical Exams: Personal Injury Attorney Cross Examination of Defendant’s Medical Expert

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.

Counel on both sides of the aisle have their own unique problems. One of the big problems the insurance companies have is obtaining 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 that they have but doctors who are willing to have spend 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 that is rarely lost on jurors.

When the defense lawyer’s 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 wedding to litigation related work generally and, specifically, to the insurance companies. Consequently, the defendant’s lawyer’s is forced to withdraw the expert.

A few random thoughts about cross-examining the IME doctor:

  • How much money do you make? Studies are showing that more and more, high priced hired gun experts (even as opposed to high priced treating doctors) are being increasingly discounted by juries.
  • The IME doctor usually performs only a cursory evaluation of the injury victim. This should be contrasted to the numerous examinations and conversations with the injury victim by the treating doctors. Accident lawyers should give their clients forms to fill out immediately after the evaluation that asks for, among other things, how much time the doctor spent with the injury victim and what questions he asked. If the doctor did a quick review of the patient, the patient’s personal injury attorney should bring this out the direct examination of the client.
  • Do you agree that there can be honest differences of opinions among doctors? Medicine is not all black and white, right? When the IME doctor agrees — as he/she must do — it lends credence to the treating doctor’s opinion.
  • Parse the expert report. Invariably, to maintain some credibility, the IME doctor will throw you a bone or two. Cross the expert with it.
  • If the treating doctor consulted other doctors in evaluating the patient, the plaintiff’s accident lawyer should point out the IME doctor did not. This underscores the difference between an examination for medical purposed and an exam for an insurance company in a lawsuit.
  • Often, defense experts are named before they evaluate the patient or even see a single medical record, largely because the insurance company’s lawyers know they will see the case as they are paid to – the insurance company’s way. The IME doctor loses a lot of credibility when the plaintiff’s accident lawyer points this out to a jury.
  • If the IME physician practices in the same community as the treating doctor, ask the IME doctor if he considers the treating doctor to be a well-respected physician in the community. There are no bad answers to this question.
  • Andrew N Pollak

    The first question is overly broad and grossly unfair. It is unreasonable for the IME physician to be the only one in the room who is required to reveal his total income. The treating physician is also highly paid by jury standards and often his overall compensation is tied to the result of the litigation (as opposed to the IME physician whose compensation cannot be tied to the results of the litigation). If the treating physician was paid for his medical services by an insurance company, it was likely at a deeply discounted rate relative to his actual charges. If the case settles or a judgment is awarded in favor of the plaintiff, the treating physician then gets paid at his full charges for the care of the patient – often several times more than he received from the insurance company initially. Thus the treating physician likely has much more at stake financially than the IME physician.

    Otherwise this is a very reasonable list of questions. I am surprised that plaintiff’s attorneys don’t ask these more often.

  • Ron Miller

    I very much disagree. The treating doctor gets pulled into a case because he/she is a doctor treating the patient. If we start allowing review of these doctor’s financials, a lot of people who are injured in accidents are going to be without a doctor. I appreciate your point and do realize – in a small minority of cases – that you are right about the doctor getting paid if there is not a good outcome. But either way, this is all legitimate cross examination with the treating doctor’s financials.

    It is also worth nothing that cross – you have not got paid yet – drops like a lead balloon at trial in front of a jury.

    As for the “IME” how much do you make, I think juries respect doctors that make a lot of money. Juries don’t have a problem with that. But the follow-up question is comparing that to how much you make from IMEs. If you ask one with the other, then you really don’t know how important IMEs matter. I’ve gotten doctors to admit that if the insurance companies stopped using their services, they would suffer severe economic hardship. (Ironically, that was when I was a defense lawyer crossing an IME doctor for the plaintiff.)

    Thanks for your comment.

  • Samantha Taber

    I recently had an IME for workers comp. three other doctors are saying I need back surgery and he is saying that I am all better. My lawyer is in the process of appealing. He did not use facts to support his decision just my family past. I am worried that when all is said and done I will be paralized. I dont know what to do I just want to be better even though the doctors say I will more than likely have back problems the rest of my life. If you have any solid advice please e-mail @

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