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TORT REPORT: IME recording requests cause for concern

Ryan Wiesner is an associate at McCoy Leavitt Laskey LLC. He represents insurance companies, businesses and individuals in all types of civil litigation, with an emphasis on assisting in the defense of catastrophic fire and explosion litigation, products liability actions and commercial disputes.

Ryan Wiesner is an associate at McCoy Leavitt Laskey LLC. He represents insurance companies, businesses and individuals in all types of civil litigation, with an emphasis on assisting in the defense of catastrophic fire and explosion litigation, products liability actions and commercial disputes.

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:

  • Turning a fact-finding procedure in an adversarial endeavor;
  • Creating an uncomfortable environment for physicians;
  • Creating an artificial environment negatively affecting the patient/physician relationship that can skew patient reactions;
  • Creating an unfair playing field, given that defense counsel is not allowed access to plaintiff’s medical exams and limiting available physicians willing to conduct IME’s, given that some doctors strictly forbid recording.

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.

5 comments

  1. On the other hand, there are lots of allegations that defense-side IME physicians are “diagnosing” injured workers in less than ten minutes. Hard to believe an effective exam can occur that quickly and be held to the same level of competency or quality as the testimony of the treating physician.

  2. Ryan, what are you, and the doctors, afraid of? I have been doing this for 35 years and I can tell you from experience, many times there is a she said/he said moment, where the DME says one thing and the injured person says another. A simple digital recording will solve the credibility issue. You write “IME’s are intended to be a non-adversarial fact-finding tool.” This is extremely niave. There are several doctors in Wisconsin whose sole source of income is doing DMEs. One makes over $1,000,000 a year. Its surprising that he has never sided with an injured person. Gee, wonder why.
    You write problems can include:

    Turning a fact-finding procedure in an adversarial endeavor;
    Creating an uncomfortable environment for physicians;
    Creating an artificial environment negatively affecting the patient/physician relationship that can skew patient reactions; (BTW, there is no physician/patient relationship between the plaintiff and the DME)
    Creating an unfair playing field, given that defense counsel is not allowed access to plaintiff’s medical exams and limiting available physicians willing to conduct IME’s, given that some doctors strictly forbid recording.

    The reality is that the process is adversarial. Judge Nowakowski of Dane County said, in allowing the recording of a DME said “The testimony of defense medical examination doctors often is responded to at trial by disagreements. Not so much ‑‑ well, there’s always disagreements with the conclusions and the opinions, but also disagreements about simple matters of how long did the examination take, how much time did you spend with this person, did the person respond in a particular way to a test that was administered, those kinds of things. As Mr. Scoptur pointed out, it ends up becoming simply he said‑she said, and the trial gets taken up with way too much time devoted to those kinds of sometimes very important issues but often issues that can be avoided altogether if there is an accurate audio recording that is done.”

    Judge John DiMotto said, in allowing the recording of a DME “if you’ve got a tape recording and everyone has a copy of it, it will enhance the ascertainment of the truth.”

    Judge Emily Mueller, in allowing recording, said ” But because of issues that may arise and that frankly have arisen upon occasion in this court, I believe that allowing a recorder would be fair to both parties. And I am going to exercise my discretion under the discovery statutes and allow it.”

    The reality is that the statutes allow a court, in its discretion, as pointed out by Judge Mueller, to order the exam on the courts’ terms and condition. The court has the power to allow a recording of the exam.

    If doctors dont want to be recorded, they can say no to doing the DME. Pretty simple solution.

    You write:”an unspecified threat of bias or general danger of a he said/she said situation is not sufficient.”

    Well, Judge Mueller, Judge DiMotto, Judge Nowakowski, and whole slew of other well respected and experienced Judges disagree.

    Ill go back where I started: what do these DME doctors and defense lawyers like you afraid of?

  3. Paul, thank you for your response; your insight on this issue is appreciated. I will attempt to reply to all of your concerns in turn.

    As for you characterizing my comment that “IME’s are intended to be a non-adversarial fact-finding tool” as being “extremely naive,” those are not my words, rather the Wisconsin Supreme Court’s. See Whanger v. Am. Family Mut. Ins. Co., 58 Wis. 2d 461, 471 (1973) (stating that “Independent medical examinations are not adversary proceedings per se but rather investigation and preparation for trial”).

    And your singling out one doctor who makes a living conducting IME’s is the exact kind of specific fact that would need to be brought to the court’s attention if a plaintiff were to request recording, if that doctor were selected by defense counsel. That is a good example of a specific fact evidencing prejudice–rather than a general concern over the IME process.

    You also take the time to point out that there is no physician/patient relationship between the plaintiff and the doctor. While it is true that a doctor/patient relationship is not created in a legal sense, there is absolutely a relationship between the doctor and patient during the examination process. The issue I address is that the introduction of a recording instrument can result in a break down in the rapport between physician and patient, which could have a negative affect on the integrity of the exam and the ultimate results.

    Additionally, while you are correct that the scope of an IME is within the discretion of the trial court, the Wisconsin Supreme Court’s decision in Whanger clarifies the law regarding when a plaintiff can invade an IME (and, again, while Whanger dealt with plaintiffs’ counsel’s request to be present, the Whanger decision seems to govern other invasive procedures). And the Supreme Court clearly requires a showing of “need or prejudice,” as recording is the exception not the rule.

    You also discuss and quote several trial court orders allowing recording–cases in which you were presumably personally involved. While I respect these judges’ decisions, the Supreme Court insists that a plaintiff show “need or prejudice.” So while these judges might accept the general argument that the threat of a “he said/she said” situation is enough to warrant recording, they are not following the law. To bring in my own personal experiences, about a month ago a plaintiff attempted to record an IME in one of my cases and cited to and attached several trial court orders drafted by a couple of the judges you mention. The judge presiding over the motion hearing, however, recognized that the law requires a showing of “need or prejudice” rather than general concerns. My motion to compel absent recording was granted because plaintiff’s counsel was not able to point to specific facts evidencing need or prejudice. I guess the point is that judges can go either way, but the law seems to be clear.

    Ultimately, you pose the following question: what are doctors and defense attorneys like me afraid of? I think the more important question is what can I do to zealously represent my clients? Why would I allow plaintiffs’ counsel free ammunition in the form of an audio recording of an IME if there is no justifiable reason for such a recording? My concern in such a situation is that plaintiffs’ counsel only requests recording to gain a tactical advantage i.e. ammunition to arbitrarily attack the doctor’s procedures and methods. If that is the case I will fight it tooth and nail for my client every time.

  4. Ryan, Whanger was decided 40 years ago. To think DMEs are non adversial is, as I said, naive. And you are wrong: Whanger is fact specific, where a lawyer requested to be present during the exam. I dont read it to apply across the board, and neither do many judges.
    To say respected and honored judges like Emily Mueller and Mike Nowakowski and just wrong ignores the statute that allows a DME on terms and conditions as determined by the court.
    Lastly, if the DME plays by the rules and is truly fair and independent, there will be no free ammunition or tactical advantage. In fact, the recording will never see the light of day in trial. And you never did address the question, what are you and the DMEs afraid of?

  5. Why are these exams called IMEs – Independent medical examinations – when they clearly are not? There is nothing independent about them at all. DME is the truth but lawyers and judges still refer to these defense examinations as IMEs. It’s time for a change.

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