Defense attorneys should be concerned by the recent trend toward recording an independent medical examinations.
It is increasingly common for plaintiffs’ counsel to request to record the exam to ensure the physician conducts a thorough examination and is not biased towards the patient. Defense counsel should try to prevent this, though, because it provides plaintiffs’ counsel with ammunition to attack the doctor’s procedures and methods.
While plaintiffs’ counsel characterizes IMEs as a defense procedure conducted by a hired-gun, IME’s are intended to be a non-adversarial fact-finding tool.
Though there are many problems that can arise from an unsupervised IME, such as a biased examination, allowing recording has many problems as well, including:
Although problems arise from recording examinations, there are circumstances where recording, or allowing opposing counsel’s presence, is needed. The Wisconsin Supreme Court has recognized two such situations: when a plaintiff’s communication problems could negatively affect the examination; and when a patient and physician have a past abrasive relationship.
In Whanger v. American Family Mut. Ins. Co., the court recognized that the need for safeguards is not relatively high, but that certain circumstances require them. So the court held that if a plaintiff seeking to invade an IME shows a “need or prejudice” the court could exercise its discretion and order counsel’s presence, or recording.
Although Whanger dealt with a plaintiff who requested counsel be present during an exam, the Whanger test is appropriately employed in a potential recording situation and litigants have successfully moved for non-recorded IME’s by arguing that a plaintiff did not satisfy the Whanger test.
If defense counsel is faced with an opposing counsel’s request for recording, he or she can file a timely motion to compel, asking the judge to order the examination absent recording. This places the burden on the plaintiff to show a “need or prejudice” that justifies invading the non-adversarial examination.
Also, defense counsel should emphasize that there are other procedural safeguards to protect plaintiffs, including plaintiffs’ counsel receiving and reviewing IME reports, deposing IME physicians, and moving to exclude irrelevant or prejudicial examination evidence.
On the other hand, plaintiffs’ counsel should research the treating physician and review client files to gain information sufficient to show the requisite “need or prejudice.” Plaintiffs’ counsel will want to point out negative history with a specific doctor to show a danger of bias, or emphasize a client’s mental or physical deficiencies to show a danger of prejudice or communication issues.
The key, though, is to point to specific facts that can prove a real threat of bias or prejudice, as an unspecified threat of bias or general danger of a he said/she said situation is not sufficient. And it is important to know that using a recording device to gain a tactical advantage is also insufficient in itself.
The bottom line is plaintiffs’ counsel should not be allowed to easily invade an examination. While there are situations that require invading an IME, defense counsel should recognize the problems associated with such practices, be ready to go on the offensive and move the court to compel an IME without invasive procedures. Plaintiffs’ counsel, on the other hand, should be prepared to highlight specific facts that show a threat of bias or prejudice if recording is not allowed.