When a person in Kootenai County, or elsewhere in Idaho, files a personal injury lawsuit, the attorney hired by the defendant's insurance company is usually permitted to have a doctor conduct an “independent” medical exam of the injured plaintiff. I place the word independent in quotation marks because a more accurate term would be “defense medical exam.”
In theory, because the degree of injury and disability is usually disputed in a personal injury case, the Court Rules allow the defense to have a doctor of its own choosing perform an examination of the plaintiff. With some exceptions, these examinations are not ‘independent' in any meaningful sense. These exams are generally conducted by doctors who earn hundreds of thousands of dollars performing exams and then writing reports which state that the plaintiff has either:
- Not been seriously injured in the auto accident, or
- If suffering from a serious injury, it is usually due to a pre-existing condition, or
- The plaintiff has failed to follow his physician's instructions and has therefore failed to “mitigate his damages.” That is, the patient's physician condition would be much better if he had followed his physician's instructions to get well.
Some dirty tricks used by doctors in defense medical exams:
- The doctor may purposely drop something on the floor, hoping that the plaintiff will pick it up, and the doctor will write a note that the patient has no limitations on back movement or agility.
- The doctor will watch the patient take off and put on his jacket before entering the examination room, and will base diagnostic conclusions on this activity even though the doctor spends only ten minutes actually clinically examining the patient.
- The doctor will improperly question the patient about lifestyle choices such as smoking or alcohol consumption, questions that should be asked by the attorneys in formal discovery, not in a medical exam.
- The doctor may perform a test in more than one way, in order to try to produce an inconsistent result. For example, the doctor may test your legs when you are sitting up and when you are lying down. Although this is the same test, your response when asked about the pain it produced, may be slightly different, thus empowering the doctor to label you as a liar or malingerer in his report.
The bottom-line advice for plaintiffs going to a defense medical exam.
- Always tell the truth.
- Be on the lookout for physician tricks designed to make you appear as a liar.
- Do not answer any questions except the most basic questions about your pain and disability.