The process of compulsory medical examination and what to expect

I have a personal injury case and I have been set for a compulsory examination.  What does this mean?

In almost every personal injury case, the defense has the right to have an examination performed by a doctor of their choosing. There are a number of things you need to know about compulsory examinations before the actual exam.

What you need to know about compulsory examinations

These examinations, often referred to as IMEs (independent medical examinations), are routine as part of Florida’s Rules of Civil Procedure, Fla.R.Civ.P. 1.360 (compulsory exam allowed “when the condition that is the subject of the requested examination is in controversy.”).

Most states have similar rules. They are now known as Compulsory Medical Examinations (CMEs). Many circuits in Florida have actually drafted guidelines for compulsory examinations that the parties must follow. 

The idea is that when someone alleges an injury, the party defending the case is allowed to have their own assessment and someone to testify on their behalf about the injuries. Or what they believe to be a lack of injuries.

First, there is nothing independent about these examinations. The doctor chosen is not court appointed nor neutral. In almost every instance, the defense will select a doctor who they believe will find that the injuries are:

A. Nonexistent

B. Do not meet the legal threshold for recovery (relevant in auto crash cases, where there has to be a permanent impairment to a reasonable degree of medical probability)

C. Exaggerated (the patient is malingering or making more out of their injuries or their symptoms are not consistent with the actual injury claimed)

D. Caused by something else such as a preexisting condition.

Second, you should not assume that these doctors are providing any care or treatment to you. They are hired guns for the defense. No matter how nice they will act, their sole purpose is to assist the defense with their case. 

These are their hired experts for the defense. Many of these doctors essentially do this for a living. It’s not unusual for some orthopedic surgeons or neurologists to make hundreds of thousands of dollars a year by performing these exams for insurance companies and defense law firms. 

In reality, it is always the insurance companies that are paying the doctors.  

You need to assume that the defense doctor is a skilled witness. That means he or she is experienced in what to look for to support their conclusions, what to say and how to testify.

They may try to get you to talk about the accident that caused the injury.  Unless your lawyer tells you to, you should not discuss any of the facts of the case with the doctor. 

Your discussion should be limited to what hurts, what you can’t do, and responses to the examination itself.

The exam may be videotaped or recorded. That’s permitted.  Plaintiffs in Florida are also allowed to have someone present if they are identified in advance. 

The purpose for this is to avoid the situation where the doctor said something happened or was said that did not occur.  

Always be pleasant and respectful when interacting with the CME doctor. Tell them what they ask and bring anything you have been instructed to bring with you. It may be a medical record, x-ray or other radiological imaging film.

Before the exam, you attorney will discuss the process with you and what to expect. If your lawyer does not, you should approach them about this since the exam is important and must be treated seriously.

You will need to arrive at the exam early. They may make you sit, as we are all familiar with waiting on doctors for appointments. But if you have to wait an extraordinary amount of time, you may want to call your attorney’s office and get advice on what to do. Do not just leave.

After the exam, let your lawyer know what you were asked, what the doctor said to you, if anything, and how long the exam lasted. The examining physician will have to prepare a report under Rule 1.360 which must set out their findings and conclusions. 

Sometimes there are additional reports prepared based on their review of other medical records from your other doctors or other compulsory exams.  Yes, you may be required to have more than one exam. It all depends on the nature of your injuries and the number and types of doctors who have treated you.  

For example, if you have been treated by a neurologist and orthopedic surgeon, they may require you see two examiners like that. They may try to have you examined by a doctor in a specialty that you have not seen Your attorney may seek to oppose that examination and go to the court to get an order preventing it. Or depending on the circumstances they may not.

There are a lot of judgment calls when it comes to personal injury litigation  Your lawyer’s skill and experience in the field will dictate what they decide to do based on the individual circumstances of your case.

It’s important to remember that the defense is almost always entitled to a compulsory examination. You want to most unbiased report possible from that doctor. 

By cooperating with the examiner and following your attorney’s advice, you will be in the best position you can be. Many clients walk out of a compulsory exam thinking the doctor was so nice to them and left them with the feeling that they were going to write a good report, only to later see that the doctor was just being nice to get the patient to say something incriminating or just try to please the examiner.

Always assume that the report generated by the CME doctor will be strongly in favor of the insurance company/defendant in the case. 

That is just the reality of compulsory examinations. Unfortunately most plaintiffs do not select the doctors they have seen (they have been referred by a hospital or other health care provider) or if they have, they may be very nice doctors but not paid advocates for one side or the other like the compulsory examiners.

When the time comes for mediation or trial, your attorney will be able to sort through the conclusions of the CME and help guide you to the best possible result.

If your case goes to trial, you can expect the compulsory examiner to be someone who has testified many times. These doctors are often in front of juries all the time, and are experienced in the courtroom. 

That doesn’t mean that you will not prevail. It just means that the CME doctor will have to be skillfully cross examined. The testimony from your treating doctor(s) and the people who are familiar with your condition before and after the accident are going to be very important.

One of the most common claims for CME doctors is that the patient may, in fact, have a herniated disk in their spine, but it was preexisting and not caused by the crash or incident in question. 

This is why the testimony from treating doctors, family, friends, and co-workers is so important. The law says that even if you had a preexisting condition, if it was aggravated by the incident, the defendant is responsible.

Many people by the age of 40 have some degenerative condition sin their spines. It’s just a consequence of aging. Of course if you didn’t have symptoms or limitations in your life, then you get injured and now do, it should not matter whether you had a preexisting condition.  

These are issues that will come up in a CME. It is important to be candid with the examining doctor about any prior injuries or accidents. The worst scenario is to allow the CME doctor to show that a plaintiff is a liar or exaggerator, and someone who was not candid about prior injuries. 

Everyone has at some time had an injury.  There’s nothing wrong with that and it is not a disqualifying fact.  But denying it can be.

In summary, be honest and candid with the examiner.  But also be clear if you did not have imitations or symptoms before this event.  In the end, that is the most important fact to focus on.