Many people involved in car accidents or other types of accidents rarely see what it is like to go through a lawsuit, because most of the personal injury claims today are settled well before a lawsuit is filed. In the event that a lawsuit is filed on your behalf, be prepared to submit to a Compulsory Medical Examination by the defendant (i.e. adverse driver, your own insurance company, etc.). That is right, in most circumstances, the defendant can demand that you be examined by “their” doctor. In Florida, the Defendant(s) in personal injury or products liability suit simply gives notice to the other side that it wishes to you to undergo a Compulsory Medical Examination or “CME”. In some circumstances, the party must file a motion, but these are rarely refused by the Court.
The choice of the medical examiner generally rests with the requesting party or Defendant(s). As expected, the Courts have upheld a general rule that permits the Plaintiff’s attorney to be present during the examination with a videographer. In U.S. Security Insurance Co. v. Cimino, 754 So.2d 697 (Fla.2000), the Supreme Court held that a plaintiff was entitled to have her own attorney or a court reporter attend her examination by the insurance company’s doctor. Whether in the context of a personal injury protection claim or in an examination pursuant to the civil procedure or workers’ compensation rules, the parties’ relationship is “adversarial” and a plaintiff is entitled to protection. Id. at 701. It is well known that in a CME, our clients are placed in the awkward position of being physically examined by someone not of his or her choosing (or their attorney’s choosing), who has no interest in our client’s well-being and not for medical treatment. A physician performing a CME “is essentially an expert witness for the party requesting the examination;” consequently, “the parties’ relationship is clearly adversarial.”
Below are some issues we address and suggestions we offer to clients before they attend their medical examination. These suggestions are meant to prepare them for what is about to come.
1. A client should be given the Notice of the Examination, in addition to a written summary of his rights and responsibilities prior to the examination. A client should understand the purpose of this examination, which is to uncover evidence that may be used against him/her. A client should also know that he/she may refuse any invasive procedures that were not discussed prior to the medical examination. Never discuss attorney/client conversations with the CME doctor; those communications are privileged and confidential.
2. Honesty is the best policy. Do not exaggerate your symptoms, as this may negatively affect your claim later.
3. Never sign anything unless previously approved by your attorney.
4. Ask the CME doctor about the scope of the physical examination. You are entitled to know exactly what the doctor is going to do to you. Your attorney should object to any invasive or experimental tests. If a study or test has already been performed (i.e. x-rays, CT scans, MRI scans, EMG, etc.), your attorney may be able to object to the test and prevent it from occurring again. However, this is not a black and white issue. On occasion, Defendants have successfully argued that new studies are required due to the length of time from the previous study, the possibility of poor resolution of a past study, etc.. The need for this information is weighed against the adverse affect to your health and privacy.
5. Your attorney will need to obtain the medical examiner’s entire file, to ensure that he/she is fully aware of the medical examiner’s assignment, reports, charges, and final opinions.
6. The Florida Rules of Civil Procedure mandate that a report must be provided by the medical examiner following an examination. Make sure that your attorney provides you with a copy so that you understand the doctor’s position on your condition and injuries.
7. If the doctor interferes with the videotaping (i.e. standing in front of the camera) or refuses to be recorded, IMMEDIATELY contact your attorney.
8. Make sure to tell your attorney if the doctor made any handwritten notes during your examination.
9. Make sure to see your treating physician or medical doctor the same-day as your medical examination. This will ensure that an unbiased medical provider properly diagnosis your condition within hours of being subjected to a CME.
To read more about Compulsory Medical Exams (CME) click here: http://www.ninthcircuit.org/sites/default/files/GuidelinesforCompulsoryMedicalExaminationsOctober2014.pdf