What follows is a listing of those items that the plaintiff should be aware of. I wish I could claim authorship of all of these items but I borrowed them from a Maryland attorney by the name of Eric Stravitz.
The content of the communication that you send to the client about the defense exam should essentially track the following:
Defense counsel has arranged for you to attend an examination with a doctor that they have chosen.
A defense medical examination is a procedure by which opposing counsel schedules an examination for you with the physician of opposing counsel’s choice. Although some of these physicians can be fair, the purpose of a defense medical examination is often to gather evidence against you.
For this reason, it is very important for you to be aware of the goal of the defense attorney and not to provide ammunition which can be used against you. Please read the following suggestions so that the doctor who will observe your behavior is more likely to write a favorable report.
1. Be Early.
If you are late for your appointment, the doctor is likely to make a notation which could hurt you at trial and in addition lateness is a factor which could prejudice the doctor toward you.
2. You Could Be On Camera.
Many doctors have a policy of watching you enter or leave the office so that they can compare your walking when you think that you are unobserved to your walking when you know that the doctor is observing you. For this reason you should be aware of the possibility that the doctor is observing you before or after your appointment and you should not exaggerate while walking in the doctor’s office.
3. Be Nice .
Do not be defensive and argumentative with the doctor. If you behave in such a manner, it is likely that the doctor will note such behavior and when later testifying, will comment regarding such behavior. This would make you look bad in front of the jury.
4. Be Honest .
Do not think of what the best response is to a doctor’s question or what the doctor is “really after”. Instead it is essential that you tell the absolute truth at all times regardless of whether you think that answers will help or hurt you.
When the doctor asks how you are, don’t say “fine” if you are not fine.
5. State Your Problems Accurately and Fully..
Tell the doctor exactly what does (or did) bother you. While it is important not to make up or exaggerate symptoms, it is just as important to inform the doctor regarding your true complaints.
If you are not in pain at the moment the doctor is examining you but are generally in pain ____ times per week or per day, make sure you tell them this.
Because the doctor is likely to summarize the history that you reveal to him in a report, it is vital that you communicate what your actual problems are (or were). If you fail to mention a problem, the insurance company will use the doctor’s report to contradict you if you later claim that this problem resulted from the event that injured you. Please review your medical history before the appointment so that you can accurately relate it to the doctor.
6. The Physical Exam.
If anything hurts, say “ouch”. Otherwise the report will read, “Did toe touches without difficulty.” Also once you say “it hurts”, don’t let the doctor push you further. You aren’t there to become even more injured.
7. No Puffing.
A good defense attorney feasts upon clients/plaintiffs who exaggerate. Doctors are aware of the pain patterns which individuals should exhibit for certain injuries and will make notations if your responses are exaggerated or inappropriate. For this reason it is most important for you to be honest with the doctor and to honestly describe the problems which you are experiencing without exaggeration.
8. Know Your Medical History .
You will probably be questioned about your medical history which should include all past medical problems, illnesses and injuries.
If your medical history includes a matter that is relevant to your current injuries and you do not, when asked by a doctor, reveal it, the failure will most likely have a negative effect on your case. If your medical history is very significant (for example you had an operation on a body part you injured in this case) and you attempt to mislead the doctor about it, you may lose your case.
9. Be Honest About Other Accidents or Injuries.
Like your previous medical history, the failure to respond to a doctor’s questions regarding other accidents or injuries could provide opposing counsel with strong ammunition during trial. If requested to discuss other accidents or injuries with the doctor, do not try to “help yourself” by failing to include other accidents or injuries.
10. No Question About Doctor’s Role with the Insurance Company or Defense Attorney.
Show the doctor respect at all times.
11. Describe the Mechanics of Your Injury Only .
If you were in a car crash, you may tell the doctor what happened to you inside the car at the time of the crash. But you should not discuss how or why the crash took place. If you slipped and fell, you may tell the doctor what part of your body struck the ground but you should not discuss the reason(s) why you fell. Similarly you should never discuss how much you believe your case is worth or whether or not you want to settle your case.
12. No Forms .
No questionnaires. If the doctor asks you for a written authorization, tell the doctor that authorization is contained in the Court Order. Blame your unwillingness on me.
13. Note the Time You Enter the Doctor’s Office and the Time you Leave.
If you can accomplish this discreetly, wear a watch to the defense medical exam and note the amount of time that the doctor spends with you. Then report this amount of time after you have left the doctor’s office.
Call me before you attend this examination if you have any questions about the upcoming examination or the contents of this letter. Also after you are done with the examination and out of the doctor’s office, take notes on anything that you think was inappropriate or strange. Lastly if you have a problem with anything that this doctor does, please find a place where you can talk privately and call me.
Also see the other posts on this site dealing with defense exams:
defense exams.
defense orders
defense federal exams
