If you have been injured in a Florida car accident and your case ends up in a lawsuit, at some point during the lawsuit you can expect that the at-fault driver’s lawyers will request that you submit to an examination by a doctor of their choice. Fla.R.Civ.P. 1.360 provides the defense lawyers for the at-fault party an opportunity to select a physician to examine the plaintiff. Although often referred to as an independent medical examination or “IME,” the defense-requested exam is more properly referred to as a compulsory medical examination or “CME.” In a nutshell, these examinations are conducted by what we call “hired-guns.” In other words, these doctors are hired by the insurance company to examine you and come up with evidence needed to try and convince a jury to return a defense verdict. This is why it is extremely important for your Florida car accident lawyer to adequately prepare for the examination and its results once a notice of examination is properly served by a defendant under Rule 1.360(a)(1)(B).
Whenever a client is being examined at the request of the at-fault driver, a Florida car accident lawyer should consider setting the rules for the examination in advance of the exam. As a threshold consideration, good cause must exist for the exam. If good cause does not exist, or if the noticed exam is duplicative of previously conducted exams, an objection to the examination should be served by your lawyer within 30 days and resolved by the court before the exam is conducted. Additionally, the rules provide a vehicle for establishing “protective rules governing [the] examination,” such as a limitation on deposition-like questioning, intrusive or painful testing, and having a third party present to videotape or transcribe the examination. U.S. Security Insurance Co. v. Cimino, 754 So.2d 697 (Fla. 2000) (confirming right to have videographer present at medical examination).
The rule requires that a medical examination be scheduled at a reasonable time and place. If a CME is conducted, the party must be given a copy of “a detailed written report of the examiner setting out the examiner’s findings.” Rule 1.360(b)(1). If no report is prepared, the examiner’s testimony can be excluded at trial. Id. The written report based on a CME prepared for litigation is a business record, but it is not admissible under the business records exception to the hearsay rule because it lacks the trustworthiness presumed in business records.
HOW DOES THE MEDICAL EXAMINATION BY AN INSURANCE DOCTOR WORK?
After your arrival at their doctor’s office you will be asked a number of questions by the doctor, nurse, or both, before a physical examination is made. This is known as a history.
History
- Personal. This will include your name, address, age, occupation and marital status.
- The accident. You will be asked when and how you were injured, or when and how the accident happened. Your Florida car accident lawyer should advise you not to tell details of how the accident happened. You should give only a brief general statement. For example, you may consider saying, “On November 1st I was driving a car which was hit by another car.” Remember, do not tell the details of “How” the accident happened to anybody in the doctor’s office, including other persons who may appear to be patients in the waiting room. If questioned about details of how this accident happened, tell the doctor that you and your attorney have already given full and complete information to the insurance company who has hired the doctor to examine you.
- Your injuries. You will be asked to tell what injuries you received in the accident. This is the time for you to give full and complete details to the doctor. It may have been a long time since your accident and you may have forgotten part of the injuries you originally received. Before reporting for the examination refresh your memory regarding all of the injuries which you received in the accident. Then, when you are questioned by the doctor, you can tell about your injuries truthfully, accurately, and completely. You are not expected to use medical terms in describing injuries. Everyday language is sufficient.
- Pain and suffering. As part of your damages you are entitled to recover for pain and suffering resulting from this accident, subject to certain limitations. Therefore, when questioned, you should tell the doctor in detail all of the suffering which you have experienced.
- Care, treatment, and disability. You will be asked to tell what effect your injuries had upon you. For example, whether you were confined to a hospital, and, if so, how long; whether you were confined to bed, and, if so, how long; whether you have been disabled for work, either totally or partially, and, if so, how long; what medical treatment you have received, how often, and for how long; whether you are still receiving medical care, what kind, and how often; the names of attending physicians, hospitals, etc. You should refresh your memory so as to be able to make reasonable estimates when requested.
- Home treatments. If you have taken any home treatment for your injuries, such as heat lamp, electric pad, hot water bottle, hot bath or shower, massage, special exercises, etc., or if you have used any physical aids, such as a brace, an appliance bandage, traction, crutches, wheelchair, special bed, mattress or board, medical collar, etc., describe these fully to the examining doctor when requested.
- Your present complaints. The doctor will probably ask you, “What are your complaints?” or “How are you now?” You should tell the doctor about any remaining effects from your injuries and about any physical condition or handicap that has resulted from the injury. What happened in the past is important, and it is also important that the doctor be fully informed about any present condition and complaint resulting from the accident. Before reporting for the examination, take a careful inventory of yourself so that you can tell the doctor about any injuries from which you have not fully recovered, and about any physical condition or handicaps that are the result of the accident.
- Past accidents. The doctor will ask whether you have ever been injured before. This question means all injuries during your entire lifetime, except for minor bumps or scratches. For example, did you fall out of a tree as a child and break an arm? Did you get hurt while working and go to a doctor for more medical care than first aid? It is important that you tell of all former injuries. It will not harm your case. It would hurt your case, however, if it could be proved in court that you failed to disclose a former injury.
- Past Serious Illnesses. The doctor will ask whether you have ever had any serious illness. This means any serious illness during your entire lifetime. Also, if you were ever hospitalized for any reason, this should be mentioned. Here again, it will not hurt your case to tell about any serious illness or hospitalization, although it would hurt your case if it could be shown in court that you failed to disclose a former serious illness or hospitalization.
The Physical Examination
After your history has been taken, the doctor will then proceed with the physical examination. The doctor will examine all those parts of your body that you have said were hurt in the accident to see whether you now have any remaining symptoms of injury. The doctor may look at each area to see whether you have any scars, swelling, atrophy, discoloration, or other evidence of injury. The doctor may check for stiffness or limited motion by asking you to bend, straighten, turn, or twist different parts of your body, such as your neck, back, arms, and legs. While you make such movements, he or she may feel the muscles to see whether there is any muscle spasm. The doctor may also feel any areas where you complain of pain to see whether they are tender or sore to touch, pressure, or motion.
In addition to examining the injured areas, the doctor may also give you a complete general physical examination in order to see whether any conditions other than injury might be causing your complaints. This may include examination of your heart, lungs, blood pressure, reflexes, blood sample, or urinalysis.
Part of the physical examination includes observation by the doctor and his or her staff of your actions and body movements. These include your actions and movements in the reception room and difficulty while undressing and dressing, how you sit down and get up, how you walk, how you get on and off the examining table, and your actions while leaving the office or building.
Things Not to Do at the Insurance Doctor’s Examination
- Don’t submit to a test known as an electroencephalogram (also called an EEG and commonly known as the brain wave test). This test is performed by putting electrical equipment attached by wires to a machine on your head.
- Don’t submit to a test known as an electromyogram (also called an EMG). This test is performed by putting needles into your muscles. These needles are attached to a machine by wires. (It is proper, however, for the doctor to use a needle or other sharp instrument on the surface of the skin to test feeling.
- Don’t allow any doctor to examine you except the doctor named in our letter to you. Also, don’t permit any other doctor to be present during the examination.
- Don’t fill out any forms or questionnaires given to you at the doctor’s office.
- Don’t sign anything at the doctor’s office.
The Doctor’s Attitude
The doctor is hired by the insurance company to examine you and may not act like your family doctor. The doctor may seem brisk, business-like, and rather impersonal. He or she may act as though he or she thinks your injuries were not serious and that you are now all right or soon will be. This may be done to discourage you about your case. Do not be disturbed or influenced by any attitude or words of the doctor. Be courteous to the doctor at all times and give the doctor all the facts about your injuries and your past and present conditions fairly and completely regardless of whether the doctor appears to think they are important.
The Doctor’s Deposition
It is likely that the defense lawyers will use the doctor as an expert witness in your case. In the event this occurs, your Florida car accident lawyer should be prepared to take the doctor’s deposition. These are some of the topics that your Florida car accident lawyer should delve into with the doctor during the deposition:
- the number of CMEs per week that the examiner performs;
- the examiner’s annual revenue from CMEs;
- the number of prior CMEs with identical results on behalf of the identical client;
- the amount of time spent with the plaintiff;
- the examiner’s definition of injury;
- the examiner’s familiarity with the American Medical Association guidelines regarding permanent injury;
- authoritative medical literature that supports the claim; and
- the number of times an expert has rendered an opinion of no permanency or no causation in similar cases.
Call a Florida Car Accident Lawyer Today for Further Information
Contacting a Florida car accident lawyer with experience is one of the first things you can do to make sure your bodily injury claim is successful.
Fowkes & Hasanbasic, Accident and Insurance Lawyers (Serving all of Florida)
1807 Short Branch Drive, Ste. 101
Trinity, Florida 34655
Call or Text (727) 500-1010