Are "Independent Medical Exams" really independent?

In New York every registered motor vehicle must have liability insurance, so if you've been hurt in a motor vehicle accident and you bring suit, there is an insurance company involved on behalf of the person you've sued. Most doctors, companies and homeowners also have insurance, so regardless of where and how you were injured, chances are there's an insurance company involved. The company is not named in the lawsuit, but it's there, and it pays for the defense attorney who represents the defendant. More importantly, that insurance company is the entity that will pay the settlement or the jury award that you obtain (up to the defendant's policy limit). It is this insurance company that determines how much to offer by way of negotiated settlement. It is also this insurance company that selects the doctor who will examine you on behalf of the defense, something the defense has the right to do in all personal injury cases. In most cases, that doctor is chosen for his or her tendency to write a report that minimizes your injury, claims your physical problem pre-existed the accident, or some combination of the two. In other words, the doctor is chosen because he is a known quantity. The insurance company knows before the exam is conducted that the doctor is going to "find" either that you're not really hurt, or that your injury was caused by something other than the accident.

Defense attorneys and insurance adjusters always refer to this exam as an "independent medical exam," or an "IME." The doctor will state, in his or her report, that "an independent medical examination of plaintiff was done on today's date." But don't be fooled. It isn't true.

First off, the doctors are selected by the insurance companies only. Plaintiff has no input into that decision. Second, the doctors are paid by the insurance companies only, and third, the likelihood of the doctor being asked to do more of these exams is directly proportionate to how consistently he or she tells the insurance company what it wants to hear, which is that their insured's negligence did not cause you harm. Lastly, the doctor is a defense expert who will meet with and plan trial testimony with the defense lawyer only. He or she will not speak with your lawyer.

Every community has a handful of doctors who do these exams. Our law firm encounters the same ones over and over. We call them defense doctors. It's easy money for them. They get paid for the time they spend reviewing your treating doctors' records and for the exam itself. Beyond that, there is no risk to them. If your own doctor tells you that you need surgery to repair a herniated disc in your back but the defense doctor says you're fine and no further treatment is needed and you can return to your pre-accident activities, that defense doctor is not liable for his or her inaccurate "findings." He cannot be blamed for damages that result from his opinions even if he's dead wrong. That's because there is no doctor/patient relationship established by these exams. Your own doctors are responsible for getting it right. A defense doctor is not.

To be sure, some doctors who do defense exams are not this way. They'll call it as they see it no matter which side is hurt or helped. They are to be commended, but in this industry, we have found them to be in the minority. Many defense doctors are older and are fading out their medical practices. Doing defense exams is an easy, risk free way to augment their incomes. Other defense doctors embrace fully this kind of business, and if they establish a solid enough reputation for delivering to the insurance companies what they want, can turn defense exams into a major part of their incomes. In complicated cases, brain injury for example, the defense exam can run into the thousands of dollars, tens of thousands if the defense doctor is called to testify at trial.

This is a situation where the insurance defense industry has turned the truth on its head. What motivation has your own doctor to state you're seriously injured if you're not? Have you offered him money to change his opinion? Of course not. He's just treating you like he'd treat anyone else. And his waiting room will be filled with patients whether you're one of them or not. On the other hand, what motivation has the defense doctor to say you're not injured when you are? A powerful one: Profit. Yet, at trial, the defense lawyer will refer to your doctors as "plaintiff's doctors," as though they're biased in your favor. But when their own defense doctor's name comes up, the doctor who is selected, paid for and answerable to only the insurance carrier, they'll call that doctor "independent." Common sense tells us the truth is the other way around.