Why your lawyer should properly negotiate the terms of a defense medical examination
January 26, 2021 by GKwriter
When dealing with personal injury cases, medical exams and doctor evaluations are some of the most important aspects of the case. As the plaintiff, you and your Virginia personal injury attorney will present your medical records and doctor’s notes as evidence of your injuries.
But the defense (the at-fault party for your injuries) can also request a defense medical examination. In this situation, the defense hires a doctor to do an examination.
The big difference between your doctor’s report and the report from the defense medical exam is that the latter isn’t unbiased. For all intents and purposes, the defense medical exam is designed to prove that you were not injured.
These exams raise major red flags for most personal injury lawyers. There are several steps your attorney should take if the defense requests a defense medical examination. We’ll summarize those steps and why your attorney is taking them.
Request that the plaintiff’s attorney be present
One way to ensure that the defense medical exam is executed appropriately is to ask that the plaintiff’s attorney be present. However, courts don’t generally rule in favor of this arrangement.
So when that request fails, the attorney can request that the exam be recorded. That way, your attorney can determine whether the tactics used and questions asked are appropriate.
The video evidence will also make it easier to challenge the admissibility of the exam. If the doctor uses questionable tactics, the exam can be thrown out and not used in the case at all.
Even if the doctor only conducted parts of the exam using questionable tactics, your attorney can get those questions and procedures thrown out.
Show that the doctor has a limited duty of care
Because there is no relationship between the doctor and the patient in a defense medical exam, the doctor has a more limited duty of care toward the patient.
Your attorney can call that into question during your case to show that these medical results are not impartial. The doctor is essentially hired to prove that you aren’t suffering from the ailments you claim to be suffering from.
A previous case in the Virginia Supreme Court shows this limitation to the doctor’s duty of care when examining a patient solely on behalf of an existing court case. The ruling determined that the duty of care is extremely low in these circumstances.
With a limited duty of care, the doctor is essentially not looking out for your best interests and not approaching the issue prepared to make an honest medical determination.
Present documentation on the doctor
Some doctors make a living as expert witnesses for insurance companies. Another aspect of the defense medical exam that your attorney can question is the legitimacy of the doctor.
At Gore & Kuperman, we routinely request the following about the doctor before allowing the exam admitted as evidence:
- The doctor’s financials on what he or she has earned as a defense doctor in the last five years.
- Articles the doctor has written on the medical issue they’re examining the patient for.
- Information from all cases the doctor has served as a defense medical witness for.
Using this information, the personal injury attorney can determine the honesty and legitimacy of the doctor. Without the right expertise, our legal team can prove that the defense’s intentions are not honest and in the best interest of the victim.
Avoid invasive tests and questions
Another aspect of the defense medical exam that your attorney can help guide is what tests the doctor runs and what questions the doctor asks. Your attorney can request that the doctor not do X-rays or diagnostic imaging during the exam.
Additionally, the doctor should not ask deposition-style questions. These are question and answer format discussions between the doctor and the plaintiff. However, when your lawyer is not present, it impedes your right to counsel during such questioning.
Instead, the doctor should do a simple physical examination to determine injuries and severity.
Ensuring transparency in Virginia defense medical examinations
The largest role your attorney plays during defense medical exams is ensuring they are transparent. While the exam might happen behind a closed door with only you and the defense doctor, your legal team can guide what happens during the exam.
You should not feel like the defense doctor is putting you in a corner or asking you trick questions. Nor should you have to undergo uncomfortable procedures and invasive tests to prove what your doctor has already determined.
Allow Gore & Kuperman to fight for your rights. Whether you’re facing a defense medical exam or just unsure of what steps to take in filing a personal injury case, we’re the legal team for you. Contact us now for a free case evaluation.