Vol. 83, No. 10, October 2010
Bar-produced Video Vilifies Medical Exam Process
Medical examinations for the purpose of litigation, conducted by a doctor other than the patient’s treating physician, have long been a necessary yet contentious issue. Because these medical professionals are most often hired by defendants, plaintiffs’ lawyers have been known to characterize them as “hired guns” who care only about getting paid by defendants/insurance companies. Traditionally known as “independent medical examinations,” the plaintiffs’ bar sometimes refer to them as “insurance company exams” or “compulsory medical exams.” (Although it should be noted they are no more “compulsory” than interrogatories or any other form of discovery.) These examinations are critical for the defense of the case because defense counsel are generally not permitted to 1) speak informally with a plaintiff’s treating physician, 2) send treating physicians complete medical records, depositions, or other discovery, or 3) retain them as independent experts.
Unfortunately, the State Bar of Wisconsin has taken an obvious and completely inappropriate side on this issue in its release of a new edition of its video “Preparing for Your Compulsory Medical Exam.”
Most of the State Bar’s video series appear to be informative tools for lawyers and clients, with topics ranging from hiring experts to preparing for depositions. This video, on the other hand, clearly takes the plaintiffs’ side and insinuates that medical examiners are the enemy.
If this video were produced and distributed by a plaintiffs’ association, there would be no problem. But the State Bar is an integrated bar created by the Wisconsin Supreme Court and directed in its mission statement to serve the interests of its members. The Bar performs a great disservice to its defense attorney membership, and the public in general, when it puts out materials that undermine both the defense position and a legally sanctioned process. Even the appearance of improper side taking is enough to make these materials run afoul of the State Bar’s mission statement.
The video first came to our attention when we received an email from the State Bar advertising the video. The email was titled, “Help your clients ace medical exams.” That title alone is offensive, not to mention a mischaracterization. Clients undergoing an examination should cooperate and be honest with the medical professional examining them. The point is not to “ace” anything. The only “right” answers are honest ones.
Both the video and brochure state that independent medical examination (IME) doctors are chosen and paid by the defense. Fair enough – we are not disputing anyone’s right to know who is paying the doctor’s bill. (Although, many times, the plaintiff’s own attorney sends him or her to such an examination.)
Our complaint lies with the blatant editorializing of the process.
The brochure states that IME doctors “overwhelmingly say the injured person’s injuries are not as serious as the person claims.” No actual statistics or cited authority is given. Quoting the brochure: “Typically, these [IME] reports minimize the extent of the person’s injuries, dispute the seriousness and/or long term effects of the injuries, and usually dispute the extent of pain, disability and need for future treatment.” The author then admits that sometimes IME doctors submit a report to insurance companies that supports the claim, but writes off such outcomes as “increasingly rare.”
The video warns the viewer that IME doctors are not “ordinary” doctors, and “not even neutral.” If IME doctors are not “ordinary” and “neutral,” it would logically follow that treating physicians must be those things. However, that conclusion ignores one of the rationales for IMEs in the first place: Treating physicians, who often have long-term and often personal relationships with their patients, are clearly susceptible to bias (or the appearance of bias) in favor of their patients. The materials foster distrust toward IME doctors, who take the same Hippocratic Oath as the claimant’s own primary physician.
The materials are replete with inferences that IMEs cannot be trusted to objectively examine and report. When the materials remind the audience that “the doctor is hired by the defense to help its case,” they fail to add that the IME physicians (and attorneys) are bound by professional ethics rules. A goal of the medical examination is to assess and find evidence that may help its case, but not through unethical means.
The materials offensively portray IME doctors as dishonorable and contemptible. In the video, the narration informs the viewer that IMEs are “paid well” – they make more money from insurance company work than from individual patients – and “want to keep the insurance company happy.” Before showing an acted-out examination, the narrator tells the viewer to note the demeanor of the doctor, and intones, “be prepared for anything here!” The video warns that the doctor may suggest that he or she was hired by the claimant’s attorney (the video does not mention that such conduct would be dishonest, unethical, and not condoned by defense attorneys). Yet the video later suggests that the claimant consider being sneaky. When talking about the prospect of audio-recording an examination, the narrator ponders: “Should you secretly record the examination? Check with your attorney!”
The brochure contains a quiz of exercises to review the lessons of the materials. In many respects this quiz is the most troubling part of the materials. For one, there is no answer key for true/false and multiple-choice exercises. This is especially egregious considering the fact that many of those exercises contain outrageous suggestions such as “be sure to moan a bit whenever you move,” “exaggerate,” and “remember that doctor knows best.” What if a quiz-taker fails to understand that some of these answers are supposed to be jokes, or walks away with incorrect information from an incorrect answer?
Taken together, the inappropriate side-taking, pejorative comments, and misplaced advice lead us to believe this video should have never been released by our State Bar, and should be promptly removed. Informing clients about legal procedure is fine. But the Bar should leave it to the individual plaintiff’s attorney to come up with his or her own strategy, advice, and opinions about IMEs.
Atty. Patricia J. Epstein and Mr. George E. McCue, law clerk, Bell, Moore & Richter S.C., Madison
John Walsh and I were asked by the CLE (now called PINNACLE™) staff to assist in updating the State Bar’s video that is used by plaintiffs’ lawyers to prepare their clients for defense medical exams. That video has now been challenged by a member of the defense bar as unfairly depicting the IME process and the practitioners providing defense IMEs.
A bit of historical perspective is important in evaluating the criticism. John and I have had literally hundreds of clients go through the IME process over the past 25-plus years. Over that time we have watched the process of “independent medical exams” gradually deteriorate to the present reality where the vast majority of these exams can fairly be labeled “adverse” medical exams. For years these exams were conducted by practicing physicians who would do a small number of medical exams for insurers each year. Those physicians were often objective, although perhaps a bit conservative. The defense requested independent medical exams in a relatively small number of cases and the exams were often a meaningful part of the process of evaluating a claim.
This has changed markedly in the past 10 years. In part, this is because many practitioners simply do not want to be involved in the litigation process. Based on a number of discussions with plaintiffs’ and defense attorneys, as well as physicians, it is also clear that medical experts who provide opinions that are adverse to the company’s interest are seldom hired again.
Defense medical exams are used much more frequently than was the case 15 or 20 years ago. The vast majority of these exams are being conducted by a relatively small group of physicians, who are well known among litigators. The lack of objectivity of many of these doctors is also well known. In many cases, any good plaintiffs’ or defense lawyer can essentially recite the doctor’s conclusions nearly verbatim before receiving the report.
The process has become far less about evaluating a claim and more about creating defenses to challenge the relationship between the accident and a person’s injuries or the long-term effect of these injuries.
It is, unfortunately, rare to see a report from a defense doctor that concurs with the opinion of the treating physicians. That was not true in the past. It is now rare to see a report from a defense doctor that agrees with the opinions of the treating physicians. That also represents a significant change.
The purpose of the revised video is to help prepare injured clients for a medical exam that, in most instances, is not a fair and neutral search for the truth. Overwhelmingly, today’s IMEs are not a search for the truth. We have always told our clients to tell the truth and to be polite and cooperative. That has not changed, nor does the video suggest it should. What the video is intended to do is provide plaintiffs with a realistic view of this process so they are not unfairly surprised or disadvantaged.
I know and respect Ms. Epstein, but I cannot agree with many of the views expressed in her letter. First, and perhaps foremost, it assumes this video is directed at the general public. It is in fact intended for use by plaintiffs’ lawyers and their clients. The State Bar’s PINNACLETM Department produces several specialized products. The notion that this video represents an official State Bar position on the issue is simply unfounded.
Ms. Epstein’s letter criticizes the statement in the video that many IME doctors are not neutral. That is a view that is held not only by plaintiffs’ lawyers, but recognized by defense lawyers as well. She does not actually deny the lack of neutrality on the part of defense medical examiners, but suggests the need for IMEs arises because treating physicians are also susceptible to bias. That ignores the fact that treating physicians are not hired by plaintiffs’ lawyers to testify and more often than not are specialists who have no prior contact with the injured person. In fact, treating physicians more typically are reluctant participants in the litigation process.
Without giving specific examples, the letter says the video is replete with comments implying that doctors conducting IMEs cannot be trusted to objectively examine and report. That, unfortunately, is the reality in the majority of instances. Ms. Epstein is critical of the statement in the video that “the doctor is hired by the defense to help its case.” In fact, she confirms in her letter that the goal of the medical examination is to find evidence that may help the defense case. That does not suggest an effort to conduct a fair and neutral evaluation of the facts.
We agree that each plaintiff’s attorney will have his or her own approach to advising and preparing clients for an IME. The video is certainly not intended to replace those efforts. It is intended specifically to assist in preparing plaintiffs for an interaction with a defense doctor, which is typically quite different from the person’s normal contacts with treating medical professionals.
We disagree that the material is unfairly critical of IME doctors. It is beyond dispute that many of these doctors are “hired guns” and make a great deal of money providing opinions favoring insurance companies. Characterizing these comments as pejorative does not render them less true. Plaintiffs’ lawyers who have spoken to hundreds of clients about the process and who have also deposed hundreds of defense medical experts are frankly far better placed to determine whether the video accomplishes a worthwhile purpose.
The video is no doubt imperfect. That said, the video is, in our view, a valuable tool and one that speaks directly and honestly to a process that has become decidedly less objective and more adversarial.
Atty. Michael Riley and Atty. John Walsh, Axley Brynelson LLP, Madison