The answer to that question is an unqualified "Yes". They can, they do, and most certainly, they will. Make no mistake about the reasons for this process. The insurance company has hired or retained a doctor to give opinions that the insurance company believes will support their defenses or the denial of your claims. In legal parlance, the medical appointment or evaluation to which you are being sent is called an Independent Medical Examination -or IME for short. These examinations are authorized by the Rules of Civil Procedure, and are condoned and routinely utilized by the insurance company in the workers' compensation arena.
The physicians utilized by the insurance industry to conduct these exams are typically highly regarded, skilled professionals and respected by their peers. These are physicians that command esteem and their opinions will be listened to. Having said that, do not misunderstand what is behind these appointments. These physicians are being paid by the insurance company for their time in reviewing medical records and conducting a physical examination of an injured person.
The insurance company fully expects a conclusion that supports a defense or a denial of the claim –and they are paying to get that opinion.
Now, understand this is not sinister. Any good plaintiff’s attorney in an appropriate case is going to retain an expert that the attorney believes will support or bolster his or her client's case, and that expert is going to be paid for their time. Both sides certainly utilize experts. Conflicting expert options, especially medical opinions, are everyday occurrences in injury based litigation.
However, there are a few points about the defense is that you should keep in mind. An insurance company has essentially unlimited resources. While that is clearly somewhat of an exaggeration, certainly, in comparison to the resources available to the average car accident victim or injured worker, the resources of the insurance company dwarf the income of any individual person. Accordingly, the insurance company is free to select the physician of their choosing.
There are doctors in every jurisdiction in this country that make hundreds of thousands of dollars each and every year testifying for or giving opinions that support the insurance company, the defense of cases, and the denial of claims.
Again, don't misunderstand. There are physicians that make similar amounts of money giving opinions that support the positions of the plaintiff's side in any given case. However, for a defense IME- you are not being sent for examination to one of those physicians.
As I mentioned, the practitioners that serve as defense IME doctors are skilled, respected, expert physicians. We know the opinions they render are going to be rooted in solid science and detailed observation.
The other certainty is that you, as an injured person, are most likely going to disagree with what they said.
Although the insurance industry may utilize an IME for any number of purposes, some of the most common scenarios are:
- Causation. Here the defense and the insurance company are seeking and paying for an opinion that an injured person’s pain complaints, symptoms, or indeed the injury itself, are the result of anything under the sun other than the accident. Some of the favorites include an underlying degenerative process or a prior injury.
- Surgery or other medical treatment is not necessary or needed. This is commonplace in the workers' compensation system. If an insurance company does not want to pay for a surgical procedure or other forms of medical treatment, they hire a doctor to opine that the treatment is not necessary, or that the surgery is not needed.
- Disability. This is also a common subject of defense IMEs in the workers' compensation context. Here, opinions rendered are typically that, although a person might be hurt, the disability is not as significant as that expressed by the treating or plaintiff's IME doctor.
The Defense IME physicians are skilled, knowledgeable practitioners Nevertheless, I'm always amazed when I see distinctly non-medical and non-scientific facts show up in medical reports. Things such as: "I've reviewed the photos of the vehicles involved and don't see a lot of property damage"; "The airbags did not deploy"; "This was a low-speed collision". These are obviously non-medical, non-scientific conclusions, often provided by a claims adjuster, that have little to do with the diagnosis, treatment or other medical opinions, yet I see these types of comments in defense IME reports with some frequency.
The two main things to remember about the defense IME are:
- [a] The insurance company can, and will, send you to a doctor who they believe will give an opinion that is favorable to the defense and unfavorable to your case.
- [b]There is little you can do to change [a].
It certainly happens that a defense IME physician agrees with the plaintiff’s doctors, or with the plaintiff's position, and the insurance company typically has little choice but to go along with what their own doctor says. Be mindful that rarely happens, in my experience.