4/9/13 IMES: THE GOOD, THE BAD WIS. STAT AND THE UGLY I DON T KNOW WHY THIS GUY LOOKS LIKE HE S DEAD

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1 IMES: THE GOOD, THE BAD AND THE UGLY A RIELLA SCHREIBER, RURAL MUTUAL INSURANCE COMPANY I DON T KNOW WHY THIS GUY LOOKS LIKE HE S DEAD WIS. STAT What gives us the right to request an IME? Wis. Stat (1)concerns the physical and mental examination of a party, and allows the court to order a party to undergo a medical exam: (1) When the mental or physical condition... of a party is in issue, the court in which the action is pending may order the party to submit to a physical, mental or vocational examination. The order may be made on motion for cause shown and upon notice to all parties and shall specify the time, place, conditions, manner, and scope of the examination and the person or persons by whom it is to be made. 1

2 SEC (1), STATS., CONT D Given the plain language of subsection (1), a court order for an IME is no sure thing. It is clearly within the discretion of the court (... the court in which the action is pending may order to the party to submit to... [an] exam. ). This discretion extends to allowing plaintiff s counsel to be present at the IME if counsel can present a compelling reason to be present. See Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284 (1977). Extended recently allow the plaintiff to record an IME by the court s discretion (audio or video). WHEN IS AN IME APPROPRIATE? Do I want to request an IME and why? IMEs are costly for the insurer and time- and energyconsuming for the plaintiff. So it s imperative to determine why an IME is important. In many situations, an IME is an appropriate tool to determine whether the plaintiff s injuries are related to the accident, permanent, and/or severe. Is there a similar or identical pre-existing problem or treatment? Does the treatment seem out of line when compared with the injury? Was there a big gap in treatment? Could the injury be work-related? WHEN IS AN IME APPROPRIATE, CONT D But an IME is not appropriate in every single personal injury case. No permanency claim. Cross-examination of plaintiff s treating physician can sometimes be sufficient. Injury is discrete, in the sense that the injury is objective and clearly accident-related (e.g., broken leg). In certain cases, the IME could prove the plaintiff s case better than the plaintiff s treating doctor. 2

3 CASE STUDY Car accident with minor daughter driving; mom as passenger. Mom speaks no english and received at least a portion of her treatment in Europe. $69k in past medical specials. Chief complaints are right shoulder and left ankle pain, and her doctor believes that these complaints are permanent. No pre-existing injuries in either area. Although her physician referred her to pain management specialists, she decided not to proceed with the treatment. Do you order an IME in this situation? WHEN IS AN IME APPROPRIATE, CONT D Deciding to request an IME is probably best done on a case by case basis and is wholly dependent on plaintiff s claimed injuries. If you decide to pursue an IME, then you need to make decisions about who to use, what specialty is appropriate, what materials the doctor should review, whether you want the doctor to generate a written report, and what issues the report should address. SELECTING AN IME DOCTOR Once you ve decided to pursue an IME, you need to decide what type of doctor is necessary and who you may want to use to perform the examination. Do you want to use the same type of specialist that the plaintiff used? What if the plaintiff visited a chiropractor? Do we then want to pursue an ICE or use a medical doctor for a more credible opinion? 3

4 SELECTING AN IME DOCTOR, CONT D How do you find a good doctor? Use of companies like CorVel Word of mouth Prior experience with the doctor The big issue here is finding someone who isn t used all the time in order to avoid allegations that the doctor is biased in favor of the insurance company. SELECTING AN IME DOCTOR, CONT D An insurer who uses the same doctor over and over again risks allegations of prejudice and bias on the doctor s part and possible weakening of his opinion. SELECTING AN IME DOCTOR, CONT D Selecting the right doctor can help avoid allegations of bias. Practicing doctors are almost always preferable to those who solely perform IMEs or records reviews because their opinions are likely going to be seen as more credible by the jury. Using a doctor who isn t in the common roster of IME doctors if you can find one is preferable to using one who is well-known as an IME doctor. For high-value cases, consider going out of state to find an expert doctor. 4

5 THE DOCTOR S QUALIFICATIONS In general, the plaintiff s expert is going to be his or her own treating physician. While it s relatively easy to select the specialty you want to use because you re most likely going to use the same type of specialty as the plaintiff s treating doctor. The IME doctor s qualifications, however, likely need to be better than that of the treating doctor because we re already working to overcome the bias that we use hired guns. THE DOCTOR S QUALIFICATIONS, CONT D Plaintiff s Doctor: Hollywood Upstairs Medical College IME Doctor: Harvard University Medical School CASE STUDY Minor plaintiff injured at age six months in accident. Only permanent injury is a visual field deficit in his left eye, making his vision on that side appear as if he is wearing blinders. True issue here is not whether the accident caused the injury, but whether the injury would preclude him from obtaining a driver s license. Obviously a case where an IME is necessary. Treating physician was from the Medical College of Wisconsin. IME doctor was a Harvard professor who specialized in the use of prisms and visual field deficits. 5

6 WHAT MATERIALS TO SEND Once you ve selected a doctor, what materials do you want the doctor to review before the IME occurs? Pleadings? All or just some? Plaintiff s Answers to Interrogatories? Your summary of Plaintiff s Answers? Deposition transcripts? Entire transcript or highlighted portion? Your summary of the plaintiff s deposition? Medical records summary? Plaintiff s doctor s report? Plaintiff s doctor s deposition? Just because you send it doesn t mean the doctor s going to review it. QUESTIONS TO ASK THE IME DOCTOR Most of us send the doctor the supporting materials and a set of discrete questions that we want answered after the IME. Given that these letters to the doctor are discoverable, how do you phrase your questions? Leading vs. open-ended questions? Ask the doctor whether he or she agrees with the treating doctor s opinions about the plaintiff s status? Do you risk asking the doctor an open-ended question regarding thoughts about the plaintiff s overall prognosis. CASE STUDY: PARROT FEVER Plaintiff s main complaint was contact with toxic mold, which caused respiratory distress. Plaintiff s treating physician opined that the respiratory distress was related to the presence of toxic mold within the home. Plaintiff was sent for an IME with a respiratory specialist in the Pacific Northwest. During the intake exam, plaintiff mentioned that he kept parrots as a hobby. IME doctor recognized his symptoms as being those of parrot fever, which was later proven through blood tests. 6

7 CASE STUDY: HIP AND KNEE REPLACEMENT Plaintiff was injured in a private passenger auto vs. dump truck t-bone accident. Suffered shattered hip and knee, both of which were replaced. Plaintiff claimed permanency as a result of the objective injuries. Decision made to send her for an IME because of high projected future medical expenses. IME doctor s report was worse than her treating physician s report. Stated that she would certainly need additional replacements and placed her permanency as more severe than her treating physician s. DO YOU WANT A REPORT? So, given the fact that the report can either be very good or very bad, do you automatically want the IME doctor to generate a report? Alternatives to a report are asking the doctor to call you to discuss the outcome of the IME before the doctor generates a report. But then you have to attempt to bury the doctor as a non-testifying consultant if the verbal report is bad. Further, if you do decide to have the doctor write a report, your phone conversation may be viewed as an attempt to influence the contents of the report. CONTENTS OF THE REPORT The questions we ask in our cover letters to the IME doctor determine the content of the report, at least in part, because the doctor has to know what questions need to be answered. But those questions can be damaging for us because it may appear that we re trying to lead doctors to a particular conclusion. This works both ways. Since we can often see the questions that plaintiff s counsel sends to treating physicians, we can attempt to use those questions in a similar fashion to shed doubt on the treating physician s opinion. This is especially so if the questions posed to the treating physician are leading or deliberately omit relevant information. 7

8 ALTERNATIVES TO IMES If we don t want to get an IME, what alternatives do we have? We can attempt to flip the plaintiff s treating physician. This works best when it s clear that the plaintiff has lied to the treating physician about similar or identical pre-existing conditions. We can use a different kind of expert to prove causation. For example, using a biomedical engineer to prove that a certain injury could not have occurred in the type of accident at issue in the case. We can use an independent medical records review to determine whether an IME is worth our time. ALTERNATIVES TO IMES, CONT D A possible alternative or precursor to an IME is the Independent Medical Records Review. A record review offers the benefit of a possible cost savings for the client while also indicating whether an IME might be fruitful. In some cases, a record review may be all that s needed for a doctor to give an opinion about a plaintiff s subjective complaints. Less expensive for the client and less onerous and intrusive for the plaintiff. PLAINTIFF S IME Plaintiffs are experiencing the same difficulties we experience and we re more often seeing plaintiff s IMEs. How does this change the landscape of how IME doctors are perceived by juries, if at all? If the plaintiff s treating doctor refuses to testify, the plaintiff probably has no choice. But if the plaintiff s treating doctor just refuses to go as far as the plaintiff s attorney wants him or her to go, then a plaintiff s IME probably suffers the same issues of bias as a defendant s IME. 8

9 THANKS! Special thanks to the following attorneys, all of whom spent their time discussing their thoughts on IMEs with me: Scott Pernitz Mark Andrews David Piehler Tony Conlin Kristine Burck Michael Riley 9