Preface
As a preface to this discussion, the issue of compulsory medical exams typically becomes a possibility only after a lawsuit is filed.
Since a high percentage of personal injury cases resolve prior to having to file suit, this procedural technique allows for a medical exam by a third party physician hired by the insurance company, once a case has entered the lawsuit stage. Remember only about 10 % of Florida personal injury cases require the filing of a lawsuit and therefore this compulsory medical exam only applies to those that are actually part of a filed lawsuit.
Florida Rules of Civil Procedure and Medical Condition
However, once a case is past the settlement stage and becomes a filed lawsuit, there are rules of procedure that govern how the parties must handle the case. These rules are called the Florida Rules of Civil Procedure. Florida Rule of Civil Procedure 1.360 , it permits a defendant to examine the medical condition of a plaintiff when that condition has been placed into controversy by the person bringing the claim. In our personal injury cases clients are always placing their physical condition into controversy. Personal injury cases naturally involve questions about the extent of an injury diagnosis and treatment. In some cases, the insurance company will argue that the injury is not related to the alleged negligence of their insured. In other cases, they will admit that their insured’s negligence caused the injury but the extent of the injury is much less severe than alleged by the injured party (our client).
Many times the insurance company will adopt both lines of defense, both that the injury is not related and even if it is the extent of the injury is less significant than claimed by the insured. This dispute calls into question the relationship and degree of injury in the case and makes it a question for the court or jury to decide.
The Independent Medical Exam
The insurance company will refer to this medical exam as a “independent medical exam” since it is being performed by a physician that has nothing to do with the case and technically is not a direct employee of either party. In reality, however, the physicians used by the insurance companies for this purpose tend to be the same one or two physicians over and over again. These physicians establish a professional relationship with these insurance companies and travel hundreds of miles to perform these exams on all different types of injured clients. As you may suspect, the insurance company has an incentive to have the physician find that the injury is not related or is not has bad as the injured party’s treating physicians think it is. Many times the injured party will have several treating physicians who are in complete agreement as to the relationship and extent of the injury only to have the insurance company physician disagree with both of those conclusions.
The Compulsory Medical Exam
The compulsory medical exam itself is usually about an hour in length and is typically not performed in a medical office. It is usually conducted in a non medical office building like a court reporter’s office or sometimes even a law office. We, as the injured party’s lawyer, has the option to videotape or attend the exam to make sure that the exam is conducted fairly. However, many of these insurance doctors use the opportunity of a video to help their insurance company out by trying to get the injured party to say things about their injury or limitations that can be used against them later. So, it is always better to leave the small talk to a bare minimum. This physician is not looking to help you at all. She is there for the insurance company and it makes her employer happiest if they can find no injury or that any injury is unrelated to their insured’s conduct in the case.
Treating Physician vs Insurance Company Physician
Most times the physicians doing this exam will conclude that your injury is either not related or not that bad. They will then be available to counter the evidence we submit from the treating physicians that link the injury to the event and who also speak to the extent of the injury. Naturally treating physicians have credibility because they are not being paid by the insurance company who is looking to save money. Insurance companies use the compulsory medical exam as evidence at trial. When the case goes to court and a jury has to determine the cause and/or extent of an alleged injury the jury will be asked to weigh the evidence provided by our firm through the treating physicians versus the insurance companies physician’s conclusions following the compulsory medical exam.
If the CME doctor prepares a report you believe to be unfair, let your lawyer worry about it. You need to be concerned with what your treating health care providers tell you about your condition and getting your life back to a new normal after your injuries.
The lawyers and staff at Zarzaur Law will prepare you for the compulsory medical exam and will see that each insurance company physician is throughly cross examined both in deposition and at trial. If you have further questions about a personal injury case you can contact our firm on the web at zarzaurlaw.com or call us at 855HIREJOE.
Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. OUR AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.
If you or a loved one has been involved in an accident, it is important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.
Sources:
https://www.hg.org/legal-articles/what-to-expect-during-an-independent-medical-examination-30945