Defense Medical Exam In Personal Injury Cases-The Order

The Defense Medical Examination Order

There are several issues that should be addressed in that order.

Who Will be Present?

• In most cases a spouse would be allowed to be present. This is especially so if the person being examined is a female or disabled in any way. Who is going to be present should be set forth in the order so that there is no dispute when the plaintiff appears for the exam.  Furthermore that person should bring a notebook. They should note the start and end time of the exam. They should note what questions are asked of the plaintiff and what responses are given. Also they should note the scope of the exam and any comments made by the doctor.
• You need to look at the case of Van Buskirk v. O’Meara, 111 Va. Cir. 529 to see how Judge Oblon of the Fairfax Circuit Court has dealt with the presence of third parties. He took a very restrictive view.

Scope

• The scope of the exam should be defined.  If it’s going to be a standard orthopedic exam then the order should state that.  Likewise if it’s going to be a standard neurological exam then the order should state that.
• The scope of questioning by the examining doctor should be defined.   In other words, the doctor should not be allowed to conduct another deposition of the plaintiff.
• If there are any documents to be filled out by the plaintiff, those should be defined. In addition it should be made clear that the plaintiff will receive a copy of those before leaving the doctor’s office.
• In neuropsychological exams it is not unusual to allow recording of the clinical interview and the mental status exam. Some courts will not allow recording of the comprehensive neuropsychological assessment.

Recording

• If the exam is going to be recorded in some fashion, that should be set forth in the order.  Many judges will allow audio taping of the exam with a transcript of that audio being given to opposing counsel.  Also if there is a request being made for videotaping, that should be cleared with the court ahead of time.
• The recording should be unnoticeable.
• If the defense claims that the recording will hamper the ability or willingness of the examiner, then argue that in fact the opposite is true.  The recording will promote a full and thorough exam wherein neither party will be fearful of what has happened.
• The defense may claim that it is unfair because the defense did not have someone present when the plaintiff was treated by her doctor.  As indicated in Maldonado v. Union Pacific Railroad Company, 2011 U.S. Dist. Lexis 23507 (D.Kan. 2011), there is no equivalence between a doctor treating a patient and a defense examiner conducting an exam.

Need for Recording

• There are a host of reasons for allowing recording.  In Thorpe v. Poore, 83 Va. Cir. at 454,  the court not only allowed a recording but also allowed a third party to be present.  There are a number of factors that may bear on the need for a recording and/or presence of a third party:

1. The age or physical or mental condition of the plaintiff.
2. Recording will aid all parties in preventing anyone from taking any words out of context.  This becomes especially important in light of the holding in Harris v. Kreutzer.
3. Recording will decrease the potential adversarial nature of the examination because there will be an unbiased record.  If the defense claims that the recording will make the examination more adversarial, that is all the more reason to have a recording.  Recording the exam will reduce any potential for conflict.

What to Bring

• The order should state what if anything the plaintiff is required to bring to the exam.  Ideally the plaintiff should not be required to bring anything.
• In some cases, it may be a good idea to have the plaintiff take with him any radiological studies and offer them to the doctor for review.  However the plaintiff should always leave the doctor’s office with those same studies.  If the doctor chooses not to review the studies, then that can be brought out on cross-examination.

Filing and References

• The order should state when the doctor’s report will be filed with the court. It should state that a copy of the examiner’s notes and any file contents prepared as part of the exam be attached to the report.
• It should state that the exam shall not be referred to as court-ordered or as being independent or agreed to. None of those things are technically correct.  The defendant has a right to such an exam. The doctor is not being picked by the court. In contrast the doctor is picked solely by the insurer.
• No attorney will edit or review a draft of the report before filing.

Those are some basic things that should be addressed as part of any such defense medical exam.

Other Matters to Consider

• Defense counsel will assist in arranging the discovery deposition of the examiner. Such deposition can be cancelled within two days of receiving the report.
• Defense counsel will provide a copy of the examiners CV, fee schedule. The expert will provide any list of depositions and trial testimony maintained for court purposes.
• Counsel will accept service of any discovery subpoenas addressed to the defense medical examiner.
• Plaintiff’s counsel will have the right to call the examiner at trial.

Defense Medical Examination-Preparing the Client

Getting the client ready for the exam is critical.  Some basic points that need to be covered are:

• Be on-time.
• Beware that when entering and leaving the doctor’s office, you may be under observation.
• Be pleasant.
• Be truthful.  In particular if the doctor asks you how you are doing, tell the doctor what symptoms you have.  Don’t just say “fine”.  However do not exaggerate.  Likewise do not understate what your symptoms are.
• If during the exam the doctor does something that causes pain, then state that.
• Review your medical history so that you are aware of what your symptoms are that may have since resolved.
• Do not question the doctor about his role.
• Don’t discuss how the event occurred unless it is necessary to describe the actual injury.
• Do not fill out any forms other than an authorization to be examined.
• Finally keep an accurate record as to when the examination begins and when it ends.

Noncompliance by the Doctor

If the examining doctor fails to comply with the DME Order, then the court may prohibit that party from introducing the designated matter into evidence. Etze v. Leyton, 2023 WL 6393849

Also see the other posts on this site dealing with defense exams:
defense exams.
preparing the client
defense federal exams