Why We Always Send Our Clients to Defense Medical Exams Accompanied by an Advocate
By Peter DeFilippis, Esq.
It is common knowledge that once a personal injury claim is initiated, insurance companies retain their own physicians to perform Defense Medical Exams (DME) upon the injured claimant. There is a good reason why we who represent claimants cast off and reject the often-used acronym IME (Independent Medical Exams) and prefer to call them DME. What most may not know is that these physicians are not exactly fully “independent”! Usually, the same doctors are hired time and again by the same insurance companies. In view of those close business relationships, whenever our client is requested to have a DME, they need all the help they can get to level the proverbial playing field and keep the assessment process forthright, fair, and honest. That’s where the valuable role of DME advocates or liaisons, who accompany the client throughout the exam, comes into play.
The DME is an important part of any personal injury case as the insurance companies use the results contained in a medical narrative report to help them place a monetary value upon the injuries claimed. Also, the doctors performing the DME will likely testify in Court about their findings if the case must go to a trial. We’ve seen firsthand how insurance companies can attempt to skew DME results in their favor and therefore we’re committed to helping our clients get the most accurate and genuine results from their insurance exams.
Below we’ll discuss some ways that insurance companies may employ unfair strategies to attempt to shape DME results.
Scheduling. Insurance companies can affect DME outcomes by scheduling the exam at an inconvenient or inopportune time. For example, they may schedule the exam during work hours, when the injured person is not able to easily take time off. This can make it difficult for our client to attend the exam and can lead to less-than-fair results.
Location. Another way that insurance companies can hamper fair DME results is by choosing an unsuitable or inaccessible location for the exam. They may choose a locale that is, for example, unreasonably far from the injured person’s home or work and/or difficult to get to by public transportation or otherwise, sometimes very cryptic or inaccurate address information is supplied in the Notice to attend an exam. This makes attendance challenging for the person with the claim to get to the exam and can lead to warped results.
Exam Length. Insurance companies may also affect the integrity of DME results by limiting the time the doctor has to examine the client. Some insurance companies arrange exams that take less than five minutes even when the injuries alleged are extensive. Therefore, the doctor may not have or process enough time to properly assess the client’s injuries, especially if the client has multiple and/or complex injuries. Clients are made to feel rushed and may leave out details about their injuries.
Choice of Doctor. Insurance companies can also unfairly tip the scale of the DME process since they alone choose which doctor will be performing the exam. They may select a doctor known to arrive at conclusions that regularly and reliably are more favorable to their interests. A doctor who economically counts on the stream of business provided by being on the insurance industry’s “DME lists” may find it a challenge to be impartial about findings.
Why Our Clients Need Exam Accompaniment?
We’re interested in ensuring our clients get the most honest and accurate DME results. That is why we hire vendors who understand this process, with its potential for bias, and will be there for our clients before, during, and after their exams and through to trial, if needed.
DME doctors may try to trick injured patients into saying things they didn’t mean. For example, upon introduction, they may ask how the claimant feels in an offhanded, conversational way and then report that the client said he or she is “fine” or “doing okay,” even though that is not their actual physical condition. This is why DME companions are so important — they help ensure everything is above board, sincere and honest.
We professionally prepare our clients by letting them know what to expect for their DME so they feel confident that we have all the bases covered. Advocates are brought in to aid our clients in any way possible and to ensure they’re not alone during this potentially stressful time.
However, if some test result obtained during the exam is majorly disputed between the parties, with a DME advocate involved, we can get proof of precisely what happened during our client’s medical exams. They take detailed notes to help get ready for trial and provide us with a copy of those notes and/or reports after the DME is over. They not only assist in DME preparation and exam room accompaniment, but they can even act as a fact witness in court if needed. If our client’s case goes to trial, they may testify about what really happened during the DME. They can help form a rebuttal for the DME doctor’s report and testimony.
Defense firms often improperly make demands of and/or subpoena the individual advocates to get a look at their notes or reports prepared in anticipation of a trial and take their depositions before trial. We successfully resisted that kind of out-of-bounds discovery practice and both the Judge in the Supreme Court, Westchester County, and the Appellate Court, Second Department agreed with the position in our memorandum. See, Bent-Anderson v Singh (2022 NY Slip Op 05676)
In the Bent-Anderson case, the Appellate Court ruled in favor of the Plaintiffs we represent by finding that, “the subject notes and reports [of an IME liaison, advocate or watchdog] are immune from discovery pursuant to the conditional privilege of materials prepared in anticipation of litigation or for trial (see CPLR 3101[d][2]; Markel v Pure Power Boot Camp, Inc., 171 AD3d 28, 31). CPLR 3101(d)(2) provides, in relevant part, that “materials . . . prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Here, the appellant has not shown any such “substantial need” and that the substantial equivalent cannot be obtained by other means.”
The fact that the defense can and usually will call the DME doctor as their witness to the exam undercuts their ability to claim that they have a substantial need for the advocate’s deposition and/or notes. Also, the insurance Doctor’s testimony provides the substantial equivalent to those notes or observations as they were not only present but actually performed the exam in question.
In short, the advantages gained by having our clients accompanied by an advocate during their DME exams are innumerable. The work they do is valuable for Plaintiff’s counsel anticipating a trial. Their notes/reports and observations are protected from discovery as they are actually agents of the lawyer and both are trying to protect the interests of an injured client and obtain a fair and just physical examination and assessment of the claimed injuries.