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.
A few random thoughts about cross-examining the IME doctor:
- How much money do you make? Studies show 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. We should contrast this to the many 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 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 on 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 the companies pay them to. The IME doctor loses 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 unsatisfactory answers to this question.