What is an IME?
    Anytime you file a lawsuit (or make a claim before filing the lawsuit) and claim the defendant injured you and that the defendant should have to pay you for that injuries, you have put your mental or physical condition at issue... and the defendant (or the insurance company representing the defendant) has a right to have a physician of his or her own choice examine you.

    This is called an "independent medical examination" and obviously it is only fair to allow the defendant or the defendant's representatives a chance to check whether you and your doctor are telling the truth... or whether your doctor knew what he was talking about and did not make a mistake.

How they work:
    But the way the Independent Medical Examinations (called an "IME") are used is often grossly unfair.  If you're not properly prepared for what is likely to happen, you may end up losing your case, or recovering far less than you should, often less than your medical bills alone even when there is no question whatsoever about who was at fault in causing your injuries.

    How can that happen?  Well, money often has a lot to do with it.  The insurance companies defending personal injury or workman's compensation claims have so many cases that they refer to doctors for IME's that the IME's can end up being a very large share of a doctor's practice, sometimes well more than half of a doctor's income will come from IME's.  This means doctors doing IME work may have some powerful financial incentives to come to conclusions that will help the defense.  (If the doctor performs IME's that don't usually help the defense, the insurance company may well end its contract with the doctor for performing IME's for them and send that work elsewhere.)  Doctors performing IME's often conclude a person has been faking their injury, or that they did not need all of the treatment that they have already received, or that their injury was the result of a pre-existing condition and not the result of anything done by the person or company the insurance represents.  This means that if you go through with the IME for the insurance company before you're properly prepared, your claim can be lost or seriously damaged.

Rules on IME's:
    IME's in Tennessee courts are governed by Tennessee Rules of Civil Procedure Rule 35.  The defending party (the insurance company or the person or company you say is responsible for your injury) must give reasonable notice of the time, place, manner, conditions and scope of the IME, and also must identify the properly licensed doctor or psychologist or psychiatrist to perform the IME.  Only one IME is allowed, unless good is cause shown for more.  And you as the injured part aren't going to be able to prevent an IME or keep someone you don't like from performing the IME.  You can limit the IME to matters actually relevant to your case, but that's about it.

    The defendant (or the defendant's insurance company) is responsible for the bill for the IME, and must also provide you (or your attorney) a copy of the report from the IME.  You must provide the examiner accurate copies of all other reports or records of any other examination of you related to the injuries or damages you claim.  You'll also have to sign a medical authorization to let the defendant (or the defendant's attorney) get any and all records, radiological films, or other evidence of your condition.  (Often this is handled with the attorneys signing an agreed order letting the defendant's attorney get the records.)   Any physician-patient privilege regarding condition at issue in the case is considered waived by the claim for damages (once some people learn this they drop their lawsuits instead of allowing anyone else to look at their records).  After the IME, your attorney can take the deposition (statement under oath) of the examiner to see exactly what to expect at trial.  If you unreasonably refuse to submit to an IME, the court may well dismiss your claim without going any further.   But this is the easy part -- the hard part is preparing for the examination.

How Doctors end up bought by defense:
    Most physicians who perform IME's would really rather not get involved in the legal system, but they do so reluctantly on an occasional basis as part of their community service.  Even though the reports of these physicians are usually straightforward and honest, it is still common in this situation for your doctor and the doctor doing the IME to have a legitimate dispute over the cause or extent of your injury.

    But for other physicians who are essentially in the pocket of the insurance industry (plaintiff's lawyers rather affectionately refer to these doctors as "insurance whores"), their bias for the defense is sometimes notorious.  Some of the doctors doing IME's are so well known to sell out their opinions that it will be the defense attorney demanding a jury trial, because the defense attorney knows the judge is likely to have heard the same line of bull from the doctor in several other cases and will give the IME report almost no weight.... but the jurors who have never heard of any of the doctors before end of getting conned and reduce the judgment significantly.

The problem from IME's:
    "Doctors" like this are often a real problem in getting a fair settlement in a personal injury case, because their conclusions, reports, and testimony are so slanted in favor of the defense and against the person in your position.  But because the doctors really bad about this are often well known to plaintiff's lawyers, we sometimes know their most common approach, how they typically write their reports, their standard charges, annual earnings from such work, and how to attack them on cross-examination.

    The standard approach of most of the doctors earning the description of "insurance whores" (and I want to apologize to all self-respecting whores for putting them in the same category with these guys -- after all, a prostitute is generally very honest about what she is doing and why) is to attack your credibility, to make you out to be dishonest.  The idea is that all claims are fraudulent and they view their task as exposing you as a fraud, not really injured, but just out to soak some poor insurance company.  These "doctors" do not actually make an effort to determine your condition and then the cause of that condition and the nature and extent of disability -- they instead simply look for ways to make it look like you are lying.

    Everything in your past medical history, history of present illness, cause of condition, subjective complaints, objective findings on physical examination, laboratory testing, diagnosis, treatment history and prognosis is called into question and can be discredited if you are not 100% accurate in reciting the facts during the independent medical examination, or if there are any inconsistencies in any of the old medical records.  The "insurance whores"  also have very selective (and sometimes creative) hearing during the IME, claiming you failed to tell them things that you in fact did say, or that you said something damaging that you in fact never mentioned.

Things to watch:
    By know you should have realized that the function of the doctor and his staff during an IME is not really "medical" at all, at least not in the way you or I would normally think of it.  The doctor and his staff are not at all interested in treating you or making you better, and are only mildly interested in diagnosing any medical problem you might have.  The principal function of the IME is to help the defense.  That's all.  If you keep this in mind, you will be much better off.  At times the doctor or his staff will almost function in a capacity some might consider to be that of a spy -- from the moment you enter the parking lot until the time you drive off you are likely being watched, and if you do anything that might be inconsistent with your medical complaint, you can expect to hear about it in front of a jury; comments on IME reports sometimes deal as much with how the "patient" got out of a car or walked across the parking lot as they do with the medical examination.

    This also means you should avoid questions dealing with fault in the accident.  If the doctor or anyone on his staff asks a question not directed to the medical issues, tell them your attorney has instructed you not to answer those questions, but that just in case you misunderstood your attorney if they want to write the question down you will review it with your attorney and get an answer back to them if it is a question you actually should answer.

    Never get angry or argumentative with the examiners... even when they are rude assholes.  If you do, they will probably record that in their report, and it will not help your case.   Remember: THIS IS NOT YOUR DOCTOR.  Nothing you tell this doctor will be confidential -- it can all be used by your insurance company against you.

    Describe your pain and medical condition truthfully and completely.  Do not exaggerate, even if it seems that the doctor is sympathizing with you and is encouraging you to say your pain is more serious than it actually has been  When the doctor seems to be on your side, he may actually be trying to trap you into referring to pain  or problems which clearly could not have been associated with your injury.

    If you cannot attend the IME at the scheduled time, call your lawyer immediately or call the doctor's office to reschedule, otherwise you could be be charged a cancellation fee.

Ways To Deal With IME's
    There are ways to deal with this.

    First, you need to be thoroughly prepared.  Counsel and your attorney should meet in advance to go over all prior relevant medical records.  No prior doctor visit for the same condition should be overlooked, because the doctor performing the IME will most certainly ask about it during the IME.  An innocent lapse of memory during the IME about a prior injury to the same or a related part of the body, or forgetting about visits to a chiropractor, or absence from work, fender benders with an emergency room visit, or x-ray of the same bone or joint can be all the examiner needs to convince a jury you are hiding something, and that your injuries are bogus.

    Second you can take in someone else (like a legal nurse practitioner) to observe the actual IME and to make certain that the doctor does not lie about what was said or what he did during the IME or what his tests found... and sometimes to make certain the doctor does not have you do something that would be actually harmful to your health.  This person should also make notes throughout the exam, including notes on how long the exam lasts.  Don't be afraid to say "Ouch" when you hurt.  If you grimace and the doctor does not see it, your reaction will not be noted.

    Third, in Tennessee it is legal for you to record the entire procedure, even without letting the doctor know it.  (Click here for more information on concealed recordings.)   But we might even want to ask the doctor to allow us to videotape the examination, making it more difficult for the doctor to leave things out of his report and to make up others.

    After the IME, write down what the doctor said and what the doctor did to you.  Then call your lawyer immediately after the IME.  You are entitled to get a copy of the IME report.
 

Things to Expect
    You should be prepared to answer questions during the IME on all of the following issues:
        Your prior health and medical history, including any and all traumatic injuries from vehicle accidents, work accidents, falls, and sports accidents, and all visits to all health care providers for the same or any related condition;
        Prior social and recreational activities;
        Events the day of the accident, in great detail;
        Your role and responsibility for the accident (to show you were also at fault);
        Detailed itemization of all injuries sustained;
        Chronological medical history subsequent to day of accident, with treatment by each health care provider;
        Timetable for acute and chronic stages of each injury, how pain was rated on each prior doctor visit, what hurts now, and how pain is rated now;
        Prior and subsequent accidents with injuries, if any, of any type;
        Your opinion of the nature and extent of any disability to each area of the body involved;
        How activities of daily living and recreational activities are affected;
        Temporary restrictions imposed by doctors;
        Functional capacity evaluations - permanent restrictions imposed by doctors;
        Physical exertion category of work you can do with restrictions;
        Transferability of skills from work done prior to injury;
        Time lost from work, with specific dates;
        Work history after accident;
        How injuries have affected ability to do basic work activities;
        Future treatment expected.

    With preparation you can avoid most of the traps of an IME... and with luck and an attorney who knows what he or she is doing you may even be able to turn it back on the defense and use it against them to hurt their case.  (Juries hate liars, and don't like anyone in a lawsuit who uses one.)

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