Plaintiff’s Conditions for Defense Medical Examination

In response to defense attorney’s request for the plaintiff to consent to a medical examination, plaintiff presents the following preliminary conditions. These are presented in a good faith effort to avoid the need for the defense to have to file a motion for an examination. Plaintiff does not object to a medical exam but is concerned about the conditions of the exam and your doctor’s willingness to provide the disclosures required by Maryland law. The conditions are as follows:

1. The defense attorney pays the cost of the examination and reimburses plaintiff in advance for any lost wages or mileage expense.
2. The proposed examining doctor’s C.V. is provided to the plaintiff at least two weeks prior to the scheduled exam.
3. A written report from the examining physician is provided to plaintiff’s attorneys within two weeks of the date the examination takes place which contains all of the doctor’s opinions and conclusions with the factual basis for same supplied.
4. Any proposed x-rays or other tests which the examining physician anticipates utilizing will be disclosed in advance of the scheduling of the examination and will be subject to approval by plaintiff and plaintiff’s counsel. Plaintiff and plaintiff’s attorney will cooperate in making existing medical records, radiological films, and other materials available for the examining physician’s review.
5. At the time of the examination, the examining doctor will not question the plaintiff concerning liability issues, and the plaintiff will not be required to complete any written questionnaires.
6. At the time of the examination, the plaintiff has the option of being accompanied by a nurse, friend, or relative whose role will be limited solely to observation.
7. This exam is the only medical exam to which the plaintiff will be required to submit.
8. The doctor agrees that plaintiff’s attorney is permitted to call the defense’s examining physician as an expert witness on behalf of the plaintiff at trial.
9. The defense attorney will obtain the doctor’s complete federal and state income tax returns with all attachments for the last three years and provide same to the plaintiff at least two weeks prior to the exam.
10. The defense attorney will obtain from the doctor any and all 1099 forms and any other documents and forms that demonstrate the source(s) of payment to the doctor from any insurance company or defense law firm that compensated the doctor for any medical exam performed in the last three years at the request of any defense law firm or insurance company. The doctor will also provide the plaintiff with a list of any and all depositions the doctor has attended and any and all times he has testified at trial within the last three years to include the name of the case; case number; name of the patient examined; name, address, and phone number of the attorneys involved; and the amount of compensation he was paid, and by whom. This information shall be provided to the plaintiff at least two weeks before the scheduled insurance medical exam.
11. The doctor will not refer to the exam he performs as an “independent medical exam.”
12. The doctor’s calendar for the last three years (shows forensic work)

Thoughts on How Our Lawyers Approach Bias

Our lawyers used to hold hostage our client submitting to an “Independent medical exam” to the defendant’s experts providing the financial information sought above.

In hindsight, this was a flawed strategy because it – perhaps fairly, honestly – made us look like obstructionists in the eyes of the judge refereeing the battle. Instead, we now comply with the defense attorney’s request for a medical exam and serve the doctor with a subpoena.

The Maryland Court of Appeals – our high court – approved this strategy in Hornage v. Falik, a 2010 Maryland Court of Appeals case our lawyers handled that affirmed this approach and set the standard for what experts are required to produce). Keep in mind: we are not fighting the question of whether the insurance company has a right to an exam but the terms and conditions.

You have to keep in mind the big picture. Historically, experts were taken at their word for how much of their income was derived from medical-legal work. At some point, Plaintiff’s trial lawyers in Maryland woke up and confronted the obvious problem: most hired gun” witnesses fudge the relative percentage of how much they make doing legal work.

Most of these doctors — and it is fair to say most defense doctors — love to pretend that the legal work that sustains their income is just a part-time hobby of theirs. They do this both for professional reasons and personal reasons. These doctors want to be viewed as “real doctors”… even when they are not.

So what do we want? The only available method to capture the expert’s income from legal work is getting the documents that demonstrate their earnings. These hired guns typically fight this like crazy because they have been lying for years about how much money they make working for defense firms. Our goal is simply to get the documents and cross-examine the experts so the jury can make a fair call on whether the income they earn has colored their perception of the case.

More Resources to Cross Examine Independent Medical Exam Doctors

• Sample Independent Medical Exam (example report from an IME in a truck accident case)
• Help Center (help center for personal injury accident and malpractice lawyers)