RULE 35 DEFENSE MEDICAL EXAM---PROTECT YOUR CLIENT

By Adam Phipps posted Tue March 04,2014 11:56 PM

  

PROTECT YOUR CLIENT FROM THE DEFENSE MEDICAL EXAMINATION

 

Physicians who perform Defense Medical Examinations (DME) in civil cases, especially personal injury or 3rd party Workers’ compensation cases, are influenced by the fact that they are being paid by the defense and this can create a bias consciously or subconsciously against your client. It is difficult to maintain true objectivity when your livelihood depends on being chosen over other experts. Obviously, the defense firm is looking to hire the “impartial” physician who has a history of providing the most beneficial reports.

 

Accordingly, many of the same DME doctors appear time and again, the same names are discussed between Plaintiffs’ counsels as bad DME doctors and conversely those are the same doctors discussed by the defense bar as good doctors. It isn’t fair to say that these medical professionals intentionally skew their report on the plaintiff in favor of the defense. However, certain of DME doctors have a very poor reputation for fairness or accuracy, and will present whatever medical opinion the defense attorney desires. 

 

The big question is, after the DME doctor’s report, which unfairly depicts the plaintiff’s examination; what can Plaintiff’s attorney do to rebut this? The answer is you can attack the credibility of the examiner by bringing in his earnings to show his/her bias, but beyond that, you cannot impeach the factual assertions made by the physician. You cannot impeach those factual assertions, unless you have a Registered Nurse observer attend the DME. 

 

What I become is your rebuttal witness in the room. I sit, unobtrusively taking notes; documenting as much of the exam as possible. While it is impossible to handwrite notes as fast as these medical crossexaminers pace the exam, I am able to capture most of the conversation and exam, enough that I have something to refresh my memory for testifying. I also have the ability to dispute factual assertions in the experts report. The reality is, when I am present at the DME, the physician often creates a less biased report. Of course, this is not the case with the few DME favorites who will go farther to come to the conclusion they want, but I am there as your impartial witness.

 

Why should you have me as your go to for IME observation?

 

I am a registered nurse with over 20 years’ experience; I have a broad range of experiences from the Emergency department to hospital management. I am also an attorney and know how to conduct myself as a witness.

 

Those plaintiff’s attorneys I have attended DMEs for, have relayed that having me there has made the client feel more comfortable, less anxious, supported, and able to stand their ground when pressed by the physician.

 

Typically, I meet the client twenty to thirty minutes prior to the scheduled appointment; this encourages the client to be early for the exam, gives me some time to outline the exam procedure, and give the client that feeling of support. I explain my purpose at the exam, that I am there as the client’s witness during the DME. I discuss with the client the typical statements made quickly and with no particular emphasis by the DME doctor, that the client shouldn’t do anything that causes pain and that the doctor is not there to treat them, but is specifically there to report to the insurance company. The client is cautioned not to assume that the doctor is listening closely or looking for expressions of pain and encourage them to inform the doctor verbally if any part of the examination causes pain.

 

My notes, which are attorney work product pertinent to the plaintiff’s representation, typically include the following:

  1. Exam start and end times.
  2. Physician’s questions and client’s answers.
  3. Physical tests and client’s response.
  4. Verbal and nonverbal indications of pain or discomfort during the examination.
  5. Any other person who may be present during the exam.
  6. Delays in the examination (MD leaves the room or spends large amounts of time reviewing records).

 

Frequently asked questions:

Q. Do you only do Plaintiff's side observation?

A. I do not limit myself to only Plaintiff side, I am truly objective in the exam, but the reality is that the Defense already has their witness (The MD) in the room. 

Q. Who pays me?

A. The attorney who hires me, as a cost of the litigation (reimbursed by the client), just like any other investigator or expert.

 

Q. Why shouldn’t I go to the exam myself or send my paralegal?

A. If you needed to testify, you would need to withdraw from the litigation. If you send your paralegal, you run the risk of breaking privilege or being required to withdraw. Most importantly, if you need a witness to testify who would be more credible than a Registered Nurse?

 

Q. How do I know about your background? Do you have a CV or resume?

A. Yes, you can find my resume online at either: My LinkedIn page or My Facebook page.

 

Q. Do you have references?

A. Yes, I can provide the names and contact information of Attorneys I regularly work with.

 

If you have any other questions, feel free to contact me:

Adam Phipps, RN, BSN, JD.

153 Main Street

Melrose, MA 02176

781-267-6995

Phippslaw.ap@gmail.com

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