Defense Exams
Most of us are familiar with getting a second medical opinion. However in a personal injury case, a second opinion may be sought by the insurance company. This comes in the form of what is called a defense medical examination.
However that second opinion is really not a second opinion. Instead the insurer for the other party is sending the injured plaintiff to a doctor chosen by the insurer. Furthermore that doctor will write a report. It will state what the doctor sees, what the cause of the injury is and the permanency of any injury. The doctors who perform these exams are experienced doctors. They derive a great deal of income from the insurers for doing these exams. In addition, they then testify at trial as to their findings. Therefore it is no big surprise that their findings are most often adverse to the plaintiff.
Defense Medical Examination-Allowing the Exam
Rule 4:10 says that a defense medical examination may be allowed for good cause. In Basham v. Lowe, 176 Va. 485, 497, 11 S.E.2d 638, 643 (1940), the court noted that the reason for such examinations is to prevent fraud based on feigned personal injuries. The court noted that the better rule in terms of the selection of an examiner is that unless the plaintiff consents then the court should, upon application of the defendant and reasonable notice to the plaintiff, name some disinterested physician to make the examination. Basham at 497. Tugman v. Riverside & Dan River Cotton Mills, 144 Va. 473, 495, 132 S.E. 179 (1926). In Virginia Linen Service, Inc. v. Allen, 198 Va. 700, 703, 96 S.E.2nd 86, 88 (1957), the court noted that it may require counsel to provide suggestions for potential examiners from which the court would then pick one.
Good Cause
Noteworthy that Rule 4:10 expressly states that the court may order an examination but does not require such an examination. The prerequisite is a showing of good cause. The rule is not intended to permit an examination just because the plaintiff’s physical condition is at issue. Seidel v. Walker, 65 Va. Cir. 199 (2004) It further is noteworthy that the defendant does not have an absolute right to pick the examiner. In Fields v. Walke, 1 Va. Cir. 96 (1969), the court noted that it rests with the discretion of the court to make such a choice and the defendant has no absolute right to pick the examiner.
Objecting
As indicated in Harris v. Kreutzer, 271 Va. 188 (2006), there may be a cause of action for the negligent performance of a defense medical examination. As a result, a plaintiff who has been injured once by the defendant does have some reason to be wary of being injured a second time. In Perkins v. Lillich, 23 Va. Cir. 218, 221 (Charlottesville, 1991), the court dealt with the issue of objecting to the examiner. That objection may be based upon bias, prejudice or other causes. If the objection is sustained, then the court may require each side to submit names to the court and the court will then select from that list. In other words, the plaintiff need not agree to the examiner chosen by the defense.
Some authority for objecting may be found in the Workers’ Compensation cases. In Harlow v. Sunnyside, 2002 WL 847859, the Commission dealt with a case where the employer was asking for an exam by a physician quite a distance from where the claimant lived. The Commission found that the employer had offered no evidence of any scarcity of appropriately qualified physicians much closer to the claimant’s home. In addition, the employer offered no explanation as to why that doctor’s particular expertise was required. As such the exam was disallowed.
Conflicting Views
Conflicting views of the role of the court in picking the examiner are found in Van Buskirk v. O’Meara, 111 Va. Cir. 529 (2023) and Pratt v. Maric, 2025 Va. Cir. LEXIS 279.
The Defense Medical Examination is not Independent
Also the insurers like to call these exams independent medical exams. However they are about as independent as the claims adjuster is.
The defense medical exam can be an important part of the defense trial strategy. The doctors they choose are very savvy. They know what questions to ask of the plaintiff. Furthermore they know the potential soft spots in the plaintiff’s case.
These exams are most often governed by a court order. This order directs the plaintiff to appear at a particular office on a particular date and time. In addition the order should describe the nature of the exam and the scope of it. Call or contact us for a free consult.
Defense Medical Examination-Follow the Money
The Virginia Supreme Court has opened the door to showing the connection between defense medical examiners and insurers. In the case of Lombard v. Rohrbaugh, 262 Va. 484 (2001), the court dealt with this issue of bias. Bias can be shown by laying out the financial connection between the doctor and the insurer. In addition, the court expressly said the plaintiff is entitled to present evidence to the jury to show that potential bias of the doctor. The only way to show that bias would be to discover the connection between the doctor and the insurer.
To show that connection you need to issue several subpoenas. First of all, subpoena the financial records of the carrier. The subpoena should request any payments the carrier has made to this doctor for forensic work of any type. Also it should include invoices, billing records, payments, receipts and 1099s.
In addition you may want to request any documents showing any lectures that the doctor has given to agents or adjusters of the company. Also ask for evidence as to any seminars or conferences where the doctor has appeared and made a presentation.
Subpoena to Doctor
The specific items that should be requested from the doctor are:
This Plaintiff
1. All computer or other records of any kind, including all correspondence, notes or memoranda related to the engagement of the doctor for review of medical records and other materials related to the plaintiff and to this case.
2. Each document, record or computer record, including telephone notes, mentioning or regarding the plaintiff generated by the doctor and/or his staff including, but not limited to, correspondence, drafts, notes, and nurses’ notes, and books since his engagement in the matter.
3. All computer or other records of any kind, related to the billing, charges, fees and payments. This should include but is not limited to 1099s, tax returns, bills and invoices of the doctor and/or his office in connection with his review of records and other materials, preparation of any report, consultations with representatives of the retaining law firms or insurance carriers, and any other work performed in connection with this matter.
Other Plaintiffs or Claimants
4. Any and all lists prepared by the doctor or his staff of litigation-related cases or workers’ compensation claims in which he has served as an expert hired by any insurance carrier, workers’ compensation carrier, or law firm to do medical records reviews or medical examinations of a plaintiff or claimant.
5. A list of all other cases in which, during the previous four years, where the doctor has testified as an expert at trial or by deposition, indicating the name of the case, court in which it was heard, the date of trial or deposition, and whether the doctor was designated by the plaintiff or defendant.
Fees in Other Cases
6. All documents recording the income or revenue generated by the doctor for medical records reviews, expert medical examinations, depositions, testimony and preparation for same for the last four years. This should include but not be limited to summaries, lists, 1099s, tax returns, bills and invoices.
7. Any computer or other records of any kind from the carrier and its related entities, related to the billing, charges, fees, and payments. This should include but not be limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of the doctor to review medical records or conduct medical examinations for the last four years.
8. All computer or other records of any kind from defense counsel and its related entities, related to the billing, charges, fees, and payments. This should include but not be limited to 1099s, tax returns, bills, invoices, and copies of checks in connection with retention of the doctor to review medical records or conduct medical examinations for the last four years.
Expert Fees
9. All schedules of fees for the doctor and his office in connection with providing expert medical/legal and/or forensic service(s) for the last four years.
General Fees
10. Any schedules of fees for physician services of the doctor or his office for his practice treating patients.
Lecture or Promotional Materials
11. Any lecture materials, documents or other materials you have provided to any group to which you have lectured within the last three years that refer or relate to:
A. The medical conditions at issue in this case;
B. Independent medical examinations;
C. Causation for injuries claimed in personal injury cases and/or
D. Soft tissue injuries.
12. Any advertising and/or promotional materials that reflect the services you have offered to any attorney, law office or insurance company.
Overcoming Objections
The defense may object to these subpoenas. However to rebut any such objection, there are several points to be made:
- Rule 4:1(b)(4) limits discovery of experts only with respect to facts known and opinions held by the expert. The documents requested in the subpoena do not constitute facts known or opinions held by the expert.
- Rule 4:1(b) allows the parties to obtain discovery as to the existence, description, nature, custody, condition and location of any books, documents or other tangible things.
- The Lombard case does not limit discovery with regards to financial information or potential bias of the expert. Indeed it says that bias may be disclosed. The only way to disclose it is through full discovery of the financial connection.
- Finally Sawyer v. Comerci, 264 Va. 68 (2002) held that the amount of money the defendant paid her expert in a prior case was relevant as to the issue of bias. In Henning v. Thomas, 235 Va. 181 (1988) the court held that the defendants were entitled to attempt to persuade the jury that the plaintiff’s expert was a doctor for hire.
Vocational Rehabilitation
Sometimes the defendants will request a defense medical exam though a vocational rehabilitation counselor. You need to check the licensing and certification of these individuals. Board certification is not the same as being a healthcare provider as defined under Va. Code § 8.01-581.1. Firesheets v. Norfolk & Western Ry., 53 Va. Cir. 3 (2000); Storms v. Lowe’s Home Centers, Inc., 211 F.R.D. 296 (W.D. Va. 2002)
Call or contact us for a free consult. Also for more info on expert witnesses see the Wikipedia pages. Also see the other posts on this site dealing with defense exams:
defense orders
preparing the client
defense federal exams
