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5 Tips Concerning the Defense Medical Exam

When the physical or mental condition of the plaintiff is the subject of a controversy that forms the subject of a lawsuit, the Idaho Rules of Civil Procedure allows defense counsel to have you submit to a compulsory defense medical examination by a doctor of the defense counsel’s choosing. Albeit the examination is commonly referred to as an "independent medical examination," there is nothing independent about the exam as the defense medical examiner that conducts the defense medical examination is selected, hired and paid for by either the defense attorney or the defendant’s insurance carrier.

Albeit the rules allow such an examination, the Idaho Supreme Court has referred to the defense medical examination as "highly intrusive." Accordingly, I provide you with a five (5) tips to help you through the process.

TIP NO. 1: TELL THE TRUTH

The defense medical examination typically commences with the defense medical examiner asking a series of questions concerning the your medical history. The purpose of the questions is to determine how credible you are in relating your history and to determine whether you are prone to hide information during the process.

It is likely that the Defense Medical Examiner has reviewed your medical records and bills produced during the course of discovery regarding not only the treatment and therapy for your injuries but also your prior medical records. Insurance companies also have access to databases regarding claimant’s prior insurance claims and that information is also provided to a defense medical examiner to explore with you during a defense medical examination, too.

So, first and foremost during the examination, you should make sure you understand the questions posed by the examiner and then tell the truth in response to each question. By failing to tell the truth during your deposition or defense medical examination, the defense attorney will be able to establish that you are less than credible as a witness in your case which would be used at trial to impeach or discredit you and your case.

As you have often heard before, "Honesty is the best policy." By telling the truth, your attorney will be able to present the best possible case on your behalf. By failing to tell the truth, you will harm your case in light of the fact that the defense attorney will be able to use that information against you to undermine your credibility and your case if the matter goes to trial. It will also undermine the value of your case in settlement negotiations.

TIP NO. 2: KEEP YOUR COOL AND REMAIN FOCUSED ON WHY YOU ARE THERE.

The defendant’s insurance company has hired the defense medical to examine you. If you fail to settle the case, the defense doctor will be called upon to render testimony at trial against you. Therefore, it is important for your to remember to keep your cool and be polite at all times during the examination.

As in the case of rendering testimony at a deposition, you need to make sure that you understand the question and answer the question honestly.

The examination begins the moment you arrive at the defense doctor’s location. You may be watched as you get out of your vehicle at the moment you arrive and until the time you leave the doctor’s office and drive away. In other words, you should consider yourself being watched at all times even while you are walking in the examiner’s parking lot. The doctor or his staff may watch you walk into the office, how you get on and off the examination table, how you sit in the waiting room, how you walk or hold your head, etc.

It is important to be polite and focused at all times during the examination.

TIP 3: IN IDAHO, YOU HAVE THE RIGHT TO AUDIO-RECORD AND IN SOME CASES VIDEO RECORD THE EXAMINATION IN A NON-OBSTRUCTIVE MANNER BUT YOUR LAWYER NEEDS TO MAKE ARRANGEMENTS BEFORE HAND.

The Idaho Supreme Court has previously held that the defense medical examination is an "inherently intrusive" exercise, and that you have the right to record the examination in a non-obstructive manner. As such, your attorney should make contact with the defense attorney or other party’s insurance carrier to make arrangements to have your defense medical examination recorded either by way of a small hand held recording device or even better - by a videographer. The use of these devices can document the accuracy of what takes place during a defense medical examination and prevents the defense medical examiner from making up testimony of what you said or did and how you said or did it.

If either the defendant’s insurance company, defense attorney or defense medical examiner refuses to allow you to record the examination with either a hand held audio recording device or a video recorder, your attorney should file a motion well in advance of the defense medical examination to have the court enter a protective order mandating that the examination go forward only if you are allowed to audio or video record the examination.

TIP NO. 4: BE FORTHRIGHT IN ANSWERING THE DEFENSE DOCTOR’S QUESTIONS BUT DON’T VOLUNTEER INFORMATION.

Remember to stay focused. As in the case of your deposition, you have two obligations during the compulsory defense medical examination which are (1) to make sure you understand the questions posed to you during the exam and (2) to answer each question honestly. That means if you don’t understand a question by the defense medical examiner under the examination, that you ask for clarification by the examiner before you attempt to answer the question. Also, as in the case of your deposition, you shouldn’t feel compelled to volunteer any information that is outside the scope of the question posed. As in the case of a deposition, one question leads to another. Some defense medical examiners fancy themselves as advocates on behalf of those who have hired them and act as if they were "Perry Mason" during a compulsory medical examination. Be patient. Keep your cool. Stay focused and remember that it is your job to understand the question, and answer the question honestly and to the best of your information, knowledge and belief. Stay polite and answer the question posed to you - nothing more and nothing less.

One other item regarding the examination, and that is, if at during anytime during the examination you are hurt or pain is inflicted as the doctor examines you, make sure you tell the examiner exactly what you are feeling. That would include, "It hurts when I do this (or that)" or "you’re hurting me when you [and explain what just happened]." Remember if your examination is being recorded, the recording can’t make a record of what you are feeling or experiencing unless you articulate that experience for the recording. It’s important that you be accurate in describing what you are feeling or experiencing particularly when it comes to describing the type and level of pain you are experiencing.

TIP NO. 5: ALBEIT YOUR ATTORNEY WON’T BE AT THE COMPULSORY MEDICAL EXAMINATION, YOUR ATTORNEY SHOULD REVIEW WITH YOU WHAT HAPPENED DURING THE EXAMINATION.

Once the examination is concluded, you should take a few moments and write down what you remember occurred during the examination and go over it with your attorney. The compulsory medical examination should have been recorded by your personal attendant or videographer, but your recollection of what just happened is important, too. Make sure that you not only write down your impressions and recollection as to what happened during the examination process as soon after the examination is concluded, but that you schedule an appointment with your attorney to go over the information with your attorney.

The compulsory medical examiner will prepare a report following the examination, and your attorney should provide you with a copy of it as soon as your attorney receives it. You should contact your attorney immediately if there are any inaccuracies set forth in the report.


Alan Morton
Advocate for Justice/Trial Lawyer