In response to your personal injury lawsuit, the defendant or its insurance company has asked that you submit to a “defense medical examination.” This means that you must report to a doctor chosen by the defendant (or its insurance company) for a physical examination. The court rules provide for this type of examination in connection with a personal injury lawsuit, so it is required that you go see the defense doctor.
A “defense medical examination” is a standard procedure in injury cases, so you do not have to be particularly worried about the fact that the defense has requested one in your particular case. You do, though, have to understand the purpose of the examination and the defense doctor’s role in your injury case. The doctor picked by the defendant may be honest and caring, but he or she was hired by the defense. The defense doctor was instructed to be on the lookout for information that can help the defense’s case; to find anything that will make your injuries not seem so serious; to look for evidence of questionable complaints by you; to find anything contrary to your claim of being injured; and to report anything that can be used to limit the value of your injury claim before a jury. The defense doctor is not there to treat you or to help you in any way. The defense doctor’s only job is to examine you and report back to the defense attorney.
Once you understand the purpose of the examination and the defense doctor’s role in your personal injury case, it is easy to understand why you need to exercise reasonable caution during the examination. Here are some simple guidelines that will help prevent the defense doctor from taking advantage of you.
Plan to arrive a few minutes before your scheduled appointment time. This will give you plenty of time to fill out any routine forms about your past medical history, and ensure that you don’t omit information because you are feeling rushed.
Plan extra time into your schedule. If the doctor’s office tells you the examination will only take an hour, plan on three hours. The defense doctor is not being paid by you and does not expect to see you again. Consequently, you may have to wait until all the regular patients have been seen, or until the doctor tends to a hospital emergency or makes rounds at the hospital. Be prepared for a long wait and do not schedule anything else on the day of the examination. Try to stay calm and relaxed, and not let the waiting bother you. Anger and frustration will get you nowhere and will prevent you from thinking and answering the doctor’s questions in a calm and relaxed manner like you should.
If you need help getting to and from the examination — e.g., if you need a friend or relative to drive you, or to help you in and out of a car or from the car to the doctor’s office; if you need a taxi to take you to the doctor’s office; or if you need to make other travel or hotel arrangements – tell your personal injury attorney about this need well in advance of the examination. Your injury lawyer will ask the defense to pay for that expense. These arrangements need to be made before the defense doctor has examined you. Once the examination is over, the defense has no incentive to be cooperative about a request for payment or reimbursement.
In some instances, you are allowed to have a friend or spouse present at your examination. If you would like someone to accompany you into the examination room, talk to your personal injury attorney about his ahead of time, so that arrangements can be made.
Regardless of how sharp your memory is, you will be more relaxed and you will make a better impression on the defense doctor if you take the time, before the examination, to think about the questions you might be asked and to jot down some notes.
For example, you know from past experience in doctors’ offices that the doctor’s staff will usually ask you to fill out paperwork detailing your medical history, your present problems, and the medications you are taking. Do not wait until you are sitting in the doctor’s waiting room to think about these things. Plan ahead. For example, make a list of all the medications you have taken since your accident, for injuries related to the accident. Take this medications list to the examination with you.
Next, write down your medical history, including your medical problems and treatments. Putting it on paper will help you organize your thinking and feel more relaxed when you are asked about these things by the doctor. If your medical history is simple and straightforward, do not take this list with you to the defense doctor appointment; if you do, the doctor may think you are trying to exaggerate your accident injury situation. Instead, keep the list to jog your memory, and read it over just before you travel to see the doctor. On the other hand, if your medical history is complicated, write it down and take the writing with you to the defense doctor appointment. Refer to your notes when you fill out the required forms, so that you complete the forms accurately. This is important because if you leave out something significant, the defense attorney will claim you were trying to hide something. Your personal injury attorney can help you decide if you should bring your written medical history with you to the defense medical examination.
At some point during the examination, the defense doctor will ask you how your accident injury has affected your daily life. You must be prepared to make a full answer. If you do not, the defense doctor may report (and tell the jury): “The patient denied any other effect from the injury except…” Think about this question ahead of time, and write down all the ways in which your accident injury has affected your daily life. For example, do you now have pain? Do you now have restrictions on what you can do? Are daily activities (e.g., bathing, dressing, walking, cooking, gardening, etc.) more difficult to perform? You might ask a friend or co-worker or your spouse to tell you about any changes they have noticed since your accident. You will not be considered brave or modest if you do not tell the doctor everything about your accident injury. Anything you leave out, the defense doctor will say you never had! Be honest with yourself and write down everything. Do not, however, take this list to the defense medical examination. If you do, the doctor may suspect you of trying to exaggerate your medical situation. This list is simply for your own use, to help you organize your thoughts and feel more relaxed when you are asked about these things by the defense doctor.
During the defense medical examination, try to remain relaxed and to be polite and cooperative in dealing with the defense doctor and his or her staff. If you seem tense and upset, the doctor may think you have something to hide in relation to your accident injury claim. Do your best to be helpful and to give complete, truthful and straightforward answers that will make a good impression on the doctor.
In addition, you need to be alert in case the defense doctor starts asking you questions about how the accident happened or what you saw at the accident scene. Some defense doctors want to be able to report anything about the events of the accident that will help the defendant. If the doctor or his staff asks you questions that seem to be more about the facts of the accident than about your injuries, simply tell the doctor — politely — that your attorney has told you not to talk about the accident, but only about your injuries.
Know the name of the doctor the defense has specified. If, for whatever reason, that exact doctor is not able to see you, do not accept an appointment with a substitute from the clinic or firm of doctors. The defense attorney probably will not accept a substitution, and you will be required by the court rules to go back and have a second examination. Instead, politely tell them that your attorney has told you to see only the named doctor, and not any other doctor. Likewise, if the clinic or named doctor asks you to see another doctor after you have seen the named doctor, politely tell them that your attorney has told you to see only the named doctor, not any other doctor.
Often, a defense doctor will take the witness stand in a personal injury trial and testify that he made a “complete medical examination” of the injured party when, in reality, the doctor spent less than five minutes with the injured party. It might even be impossible for the doctor to have obtained all the information he says he did in the short time he spent with the injured party. To challenge the doctor’s assertion, you will need to quietly pay attention to the exact time the doctor comes into the room to see you, and the exact time the doctor leaves. It may be that the doctor spends three or four minutes with you, then leaves, then comes back an hour later after various tests have been done, and spends another three or four minutes. Do not make a big deal out of this or write anything down while the doctor or his staff is in the room, but make a mental note the doctor’s comings and goings. As soon as you leave the doctor’s office, write down the number of minutes the doctor actually spent with you, and call your personal injury attorney to report this.
One word of caution: Watching the time should be a secondary concern to giving accurate answers to the doctor. Being alert to the doctor’s questions is more important than anything else.
The first part of your defense medical examination will probably consist of written or oral questions. If you are asked to write down a medical history and there is not enough space to put down a full answer, write what you can and then note on the form, “not enough space” to complete the answer.
Answer all of the questions politely and truthfully. Do not try to fake anything — this would be quickly discovered by an experienced defense doctor. If a question is unclear, do not be afraid to ask the doctor to explain or reword the question. If you do not understand a question, say so. Do not be rushed into answering without thinking. Try to answer only the question you are asked and to avoid unnecessary talking. Remember, the doctor is hired by the defense to help its case, not yours, and anything you say can be brought into court later.
Do not be surprised if the doctor asks about past hospitalizations or prior conditions. The defense may have obtained X-rays and other tests and records from an earlier time. Insurance companies sometimes go years back into hospital records, even checking other states where you lived as a child, to obtain medical records.
At some point during the defense medical examination, the doctor will ask you to describe your aches and pains. (This question probably was on one of the forms he had you fill out at the beginning, but he will ask you again.) Because pain is subjective, and it is difficult to describe what an ache or a pain feels like, it may be best to use the “it hurts when I do this” approach. Then, relate what it is that you cannot do because of pain and where the pain is located. Do not understate your pain and the problems it causes you. This is not a time to be modest or be some sort of hero about bearing pain. On the other hand, do not exaggerate your pain. Tell the truth, in as much detail as you can.
The nature of the physical examination will depend upon your accident injuries and what sort of things the doctor is investigating in relation to your personal injury claim. Some procedures, like checking blood pressure and listening to your heart and lungs, or checking your reflexes will probably be familiar to you because they are an ordinary part of any physical examination.
Other procedures are standard in defense medical examinations in personal injury cases. These procedures include the nurse or a doctor watching you walk in the interior office hallway on the way to the examination room; asking you to sit or remove clothing and watching if there is any difficulty; or visually examining your entire body for other difficulties that might contribute to your present condition. (In fact, the defense hopes the doctor finds some cause, other than the accident, for your present condition.)
The defense doctor, as a part of the defense medical examination, may also do other tests that you consider to be normal, such as X-rays, but you will not have to come back on another day for such tests, unless your personal injury attorney tells you to do that. If the doctor asks you to come back for a second day of tests, politely tell the doctor that your attorney told you that you were to see the doctor on that one day only.
There is no reason for you to sign any form giving the doctor any waiver of liability for his tests or examination, or consenting to any procedure or test. Likewise, there is no reason for you to sign any form agreeing to pay the doctor any amount or to be responsible for paying the doctor any amount. The defense doctor does not need to see your insurance card. If the doctor asks for your signature on any “waiver” or “consent” form, just explain politely that your attorney has asked you not to sign any waivers or consents.
If you have questions or concerns during the examination, politely ask for a break and call your personal injury attorney. For example, if the doctor wants to repeat X-rays you have just recently had taken, or wants to take an awful lot of X-rays, you may be concerned about your exposure to X-ray radiation. You have a right to discuss that concern both with the doctor and with your personal injury attorney before proceeding. Likewise, if the doctor wants to take a biopsy, administer a drug, or inject a dye into your veins, you can decline by politely saying that you think it would be dangerous to your health or body, and you first want to check with your lawyer or your own doctor.
When the defense medical examination is over, take a few minutes to jot down some notes and then call your personal injury attorney. Tell your attorney everything you can remember about what the doctor said, what the doctor did and what, if anything, the doctor dictated into a recorder. Your personal injury attorney also will want to know what time you arrived at the doctor’s office, how long you waited to see the doctor, and how long the doctor actually was with you.
The defense doctor will prepare a report for the defense attorney, outlining what he found. Your personal injury attorney we will ask for a copy of that report, and will review it with you.