Writing and Defending Your IME Report sample
By Steven Babitsky, Esquire, James J. Mangraviti, Jr., Esquire, and J. Mark Melhorn, MD
© 2004 SEAK, Inc.
Return to book page and ordering link
Samples
One of the text’s 479 examples (Example 12.54) is set forth below:
Example 12.54: Overly cooperative examiner
Report States:
I hope this IME report will be useful to you.
Resulting Cross-examination:
Q. Doctor, you tried to cooperate with the insurance company who retained you to perform an IME in this case, correct?
A. Yes, I did.
Q. In fact, you tried to write your report so the insurer would find it useful, isn’t that the case?
A. I wrote what I found.
Q. You knew from the two questions asked by the insurer that they were attempting to discontinue the temporary total compensation of the claimant and you gave them a report they used to file for the discontinuance, correct?
A. I issued my IME report based upon the results of my examination.
Q. After you knew they were attempting to discontinue the weekly compensation of the claimant, you wrote in your report, “I hope this IME report will be useful to you,” correct?
A. I didn’t mean anything by the comment.
Q. Could you explain under oath, Doctor, what you did mean by, “I hope this IME report will be useful to you”?
Comment: Comments and statements like the one in the above example frequently find their way into IME reports or into accompanying cover letters. Examiners are better served by omitting this kind of polite comment that can be mischaracterized by opposing counsel to imply a sinister conspiracy.
Defending the Report As Written: Examiners who act defensively when faced with a comment of this nature do themselves and their reports a disservice. There is no need for the examiner to be so timid on cross-examination. In addition, the IME physician should carefully review the context of the statement to see if counsel is mischaracterizing it or twisting its meaning.
Q. Could you explain under oath, Doctor, what you meant by, “I hope this IME report will be useful to you”?
A. I was trying to be politesomething we don’t see enough of. I resent the dishonest way you took the statement out of context. The entire sentence in my report reads, “I hope this IME report will be useful to you as you continue to assist the examinee.”
One of the text’s 27 trick and difficult questions (#2) is set forth below:
Question 2: Treating physician vs. IME examiner
Question: Since you only saw the examinee once, for 30 minutes, and her treating doctor saw her numerous times over a three-year period, isn’t the treating physician in the best position to opine on the examinee’s disability, impairment, and work capacity?
Reply 1 (Novice): Yes, she is.
Reply 2 (Defensive): Just because she is the treating physician doesn’t mean she knows more than I do.
Reply 3 (Artful): The treating physician did not enjoy the advantage of having all of the medical records available to me before developing her opinion. Furthermore, I was asked to answer specific questions. It is possible that her treating physician may not have my extensive training and experience in the areas of disability, work capacity, and impairment or have specific training in rating and evaluating disability impairment and work capacity. Therefore, in this case, the answer to your question is, no, the treating physician is not in a better position than I am to opine on the examinee’s disability impairment and work capacity.
Lesson: Here counsel is trying to allege, imply, or infer that because the treating physician has had more contact with the examinee, she is in a better position to opine on the issues raised by the IME process. In fact, many IME examiners have had extensive training and experience in dealing with evaluating and rating impairment and disability. They have no allegiance to the examinee and have no patient-physician relationship. Examiners also have the benefit of hindsight, which the treating physician often does not have.
The novice reply is a major concession that could dramatically influence the outcome of the case.
The defensive reply is a weak denial without any reasons or specifics to back it up. It is not persuasive.
The artful reply is a strong answer because it provides specific reasons and information to back it up. Notice as well how the examiner gave his explanation first and then provided his “no” answer. This helps to ensure that the examiner’s explanation is not cut off.
One of the text’s 25 tactics (#7) is set forth below:
Tactic 7: Hurt the examinee
Counsel here will try to show that the examiner hurt the claimant during the IME exam. Being “too rough,” even if it didn’t cause any permanent damage, may not sit too well with the fact finder. This tactic is defensed by being prepared to explain the various safeguards the examiner employs to insure that the examinee is not injured during the examination.
Example 16.29: Hurt the examinee
Report States:
The examinee tolerated the 45-minute IME examination well.
Resulting Cross-examination:
Q. Doctor, are you concerned about the fact that you hurt the claimant during your IME examination?
A. I am not, as it is not true.
Q. Here is a report by her treating doctor who she saw three hours after your exam. In the report he recounts her injury at your office and restricts her to bed rest. Do you still maintain, Doctor, that you didn’t hurt her?
Comment: Counsel here is making a serious allegation against the examiner. If the fact finder believes the examinee, the factfinder is likely to be upset with the examiner and discount his entire exam and report. The examiner may also face potential civil liability for malpractice.
Defending the Report As Written: When faced with this type of spurious allegation, the examiner needs to do more than just deny it. In a “she said, he said” situation, there is no telling who the judge will believe.
Q. Doctor, are you concerned about the fact that you hurt the claimant during your IME examination?
A. Counsel, I would be concerned for the welfare of the claimant if your statement was true. However, the examinee was told orally not to do anything during the exam that would result in harm and to stop the examination at any time she had a concern. This was witnessed by my nurse and documented in my report. She was also told to notify us immediately of any difficulties during the examination. She at no time during or after the examination did this. At the end of the examination, she read and signed the satisfaction survey. In the form she answered the following three questions:
1. Were you pleased with the manner in which this evaluation was performed?
(She checked “yes” she was.)
2. Were you treated with dignity and respect by the staff?
(She checked “yes” she was.)
3. Did you experience any difficulties during the examination?
(She checked “no” she did not.)
She then signed and dated the form. Counsel, would you like to make this form part of the record?
