Biased Insurance Medical Exams Reexamined

“Independent” medical exams are commonplace in personal litigation, workers compensation, and disability insurance contexts.  Experience has made us cynical so that we now refer to these as “defense medical exams” or “insurance medical exams.”

The New York Times on 3/31/09 carried an investigative article, “Exams of Injured Workers Feed Mutual Mistrust,” detailing abuses of such exams in the New York workers compensation system.  In fairness, there are also common forms of fraud by claimants, companies and others. But that does not excuse the fraud in “independent” medical exams.

Some highlights of the article:

• Quote from an IME doctor who was videotaped in an exam making positive finding, directly contradictory to the report he later submitted: ““If you did a truly pure report, you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”
• “You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did.”
• “There are some noble things you can do in medicine without treating. This ain’t one of them.”
• “Physicians regrettably have moved away from being neutral observers. They’ve moved toward one camp or the other.”
• Often IME doctors are hired  by brokers that then have clerical staffs prepare reports based on dictation or checklists completed by the doctors, who often do not read the reports before signing them.  The article gives examples of doctors signing reports on exams they never performed.
• The best protection against this sort of thing is to record or videotape an IME.

My experience in Georgia is almost entirely in civil litigation rather than workers comp, which is a different animal.  In personal injury litigation, a small number of “reliable” doctors perform most of the IMEs. They stiffly resist any attempt to record or videotape exams.

 OCGA 9-11-35 provides for a medical examination in the discretion of the court for good cause shown. 

The choice of examiners  is ultimately within the discretion of the court, which need not approve an exam by a doctor who is a hand-picked defense advocate.  Though some judges seem not to understand this point, the law does not provide for an adversarial medical examination by a hand-picked defense advocate.  There is nothing in the Code to authorize the defendant to require the court to select, or the plaintiff to submit to examination by, a physician who is a handpicked and reliable advocate for the defense.

The burden is on the party seeking the exam to show “good cause.”  A critical factor in determining whether to grant a motion for examination are the ability of the movant to obtain the desired information by other means and the timeliness of the motion and the events leading up to it.

We have had some success in blocking or neutralizing defense medical exams.  When we have blocked use of notoriously biased defense medical examiners, or successfully insisted on videotaping the exams, we have found that the insurance companies do not proceed with exams by neutral doctors or with the biased doctors being videotaped.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.