There is no “i” in team, and there shouldn’t be one in “IME,” either, because there is nothing “independent” about an IME in a personal injury lawsuit. In fact, plaintiff’s’ personal injury attorneys are more properly referring to these exams as CMEs these days, or “Compulsory Medical Exams.” For purposes of this article, I will use the term “IME” only because it is more widely used, but make no mistake about it, IMEs are in no way impartial, independent or any other “i” word implying lack of bias.
What is an IME?
So, what is an IME? In a personal injury lawsuit, an IME is a medical exam that the plaintiff must undergo at the defendant’s request, using the defendant’s choice of doctor, pursuant to discovery rules. While plaintiffs’ attorneys can have their own clients undergo an IME using a doctor of their own choice, plaintiffs really only need to be wary of the IMEs ordered by the defense (and these are the type of IME that I refer to throughout this article). Why? Because the purpose of the IME is to prepare the defendant’s expert witness — the IME doctor — to testify that you are not hurt, or that you are not hurt as badly as you say you are. Sometimes it is used to prematurely place you at MMI in an attempt to cut off your future medical care. The IME doctor knows who hired him and for what purpose, and if he ever wants to be hired by another defense attorney again (this is a lucrative repeat-business prospect) he will slant his opinions to be as unfavorable to your case as possible. Knowing this, what can you do to minimize the damage caused by an IME?
How to Handle the Exam Itself
You will receive plenty of advance notice from your own attorney when the defendant has scheduled you for an IME. You will know the name of the doctor conducting the exam and his specialty (orthopedic, neurologist, chiropractor — depending on the nature of your injury). Your attorney may know this doctor and what to expect from him, as many are repeat players that your attorney has encountered before in other lawsuits. Listen carefully to any specific advice given by your lawyer, as he will know any tricks this doctor has employed in the past. Your attorney will also let you know if someone from his office will be attending the IME (such as your lawyer himself, a paralegal or a videographer). Rules for attendance by your own side vary among jurisdictions, and different lawyers have different approaches. I will assume a worst case scenario for you — that your lawyer doesn’t know much about the doctor and that you will be attending the exam alone.
The first thing you need to realize is that you may be watched from the moment you arrive at the doctor’s office. Some IME doctors are zealous enough to watch the plaintiff as they enter the parking lot and as they leave, to see if the plaintiff lifts anything or walks differently when he doesn’t think he’s being watched. Be cognizant of your behavior in the waiting room. If you claim trouble sitting for extended periods of time, be sure that you don’t sit still in the waiting room should the doctor decide to make you wait for an hour. Take note of the exact time your actual exam with the doctor starts and ends. It will be surprisingly short in most cases (maybe even 15 minutes). Write it down. This can be later used by your attorney to cross-examine the IME doctor.
Expect that the doctor will have you fill out a questionnaire regarding your medical history and current condition. If you need to bring some notes with you to remember some of these things, do so. Describe your medical problems consistently with how you have described them to your treating doctors. If you told your treating doctor you pain is a “6 on a 10 scale,” don’t suddenly up it to a “10” at your IME (unless you can explain what worsened your pain). Despite the fact that you filled out this questionnaire, the doctor will probably ask you many of the same questions during your physical exam. Feel free to refer him to the questionnaire if you’ve already answered the question there. Asking you the same question twice is just a way to try to catch you in an inconsistency. Also, beware of the doctor trying to conduct his own deposition of you during the exam. If he’s asking you questions about how the accident happened that do not affect your injuries (like whether the light was green or red), let him know that you don’t feel comfortable answering that question before speaking with your lawyer. Then call your lawyer and see if he wants you to answer the doctor’s question. Usually, if a doctor tries to pull these kinds of shenanigans, calling your lawyer will put an end to it. Odds are, if your deposition has already been taken in this lawsuit, the doctor has received and read it before your exam, so there’s no reason for him to need to ask those questions.
Do Not Exaggerate
Despite the fact that the IME doctor is trying to hurt your case, do not exaggerate your symptoms in an effort to compensate for his bias. This doctor wants you to lie to him so he can call all of your injuries into question. He may even invite you to exaggerate by suggesting that certain body parts may hurt in the hopes that you’ll lie and agree with him. If your neck only hurts when you move it side to side, don’t say that it hurts when you bend it up and down as well. Certain types of injuries will lend themselves to certain painful movements, while not causing pain with others. For example, a shoulder injury may cause it to be painful to lift something with your arm extended in front you, but not cause pain when you lift something with your arm at your side. Describe the pain as it is, not as you think it should be or as the doctor suggests it should be. That being said, if the doctor does something which causes you pain, be sure to let him know even if he doesn’t ask. Otherwise, he will assume that your silence means “no pain.”
Do Not Socialize
If this doctor is clever, he will probably be nice to you and try to get you into a talkative mood. Be polite, but don’t treat this meeting as a social conversation. The IME doctor doesn’t need to know that your kids play in little league or that you hate your job. Keep reminding yourself why you are there and assume that anything you volunteer outside of medical information will come back to haunt you. This is not your treating doctor. Everything you tell him will be relayed to the defense attorney.
Occasionally, I have seen IME doctors try to have plaintiffs fill out “exit interview” or “feedback” questionnaires which ask for your feelings about the medical exam. Do not fill this out. Politely decline and leave. The last thing you want is your positive review of this doctor’s exam being used against you in court. If you give him a negative review, he may characterize you as hostile and imply that you were not forthcoming during the exam because you didn’t like him. These types of exit interview forms are a no-win proposition — so it is best that you don’t fill them out at all.
The IME Report
After every IME, the doctor will generate a written report of his findings, which your attorney will receive within a month or so after the exam. Ask your attorney to let you see the report when he gets it, and note any inaccuracies in the report. Make sure the IME doctor did not put any words in your mouth. Note any complaints you made to the doctor which are not reflected in the report. Expect that the doctor will minimize your injuries as much as possible. He may even claim that your injuries are unrelated to your accident. This is typical, and there is nothing you can do about it. You are mainly concerned with the facts, not his opinions. Your lawyer will address the doctor’s opinions when the time comes.
Psychiatric or Psychological IMEs
As a final word on IMEs, know that IMEs for psychiatric or psychological issues (in cases where you have significant emotional distress injuries, such as PTSD) can be quite different from IMEs for physical issues. They will usually be much longer, and will likely involve extensive written testing (there are standardized psychological tests, such as the MMPI, which can take hours to complete). Sometimes these types of exams can be split over more than one day, with one day for written testing and another for oral interviews. There are usually greater restrictions on your ability to bring someone with you to the exam, such as your lawyer. When your attorney gets notice of a “Psych IME” it should list all of the proposed tests. If you have unusual anxiety about this exam, discuss it with your mental health care professional and your lawyer, and see if there are accommodations which can make you more comfortable, such as shorter exam sessions spread out over more days.
As with physical IMEs, don’t try to help your case by exaggerating your symptoms. Be honest, but always keep in mind that this is not your treating mental health care provider examining you. They are not examining you for treatment purposes, but rather to hurt your lawsuit.