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Any medical writer/ scientific writer here?
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First, don’t call it an IME, it’s a DME. Second, when you get the notice, you need to object against this. The doctor gets to physically examine the plaintiff and review the records, that’s it. There is case law
Nah, it is technically called an IME in most jurisdictions but in reality, we all know it’s a Defense Medical Exam (DME). If it were truly independent, then the doctor wouldn’t be trying to force the client to answer questions to assist the defense.
That does make more sense. Good questions. I was assuming you were on D’s side not P.
Questions in an IME are not evidence. The answers are not sworn statements. The P’s answers could conceivably be statements against interest that are not hearsay. But the IME doc has to testify to the answers as a fact witness, not an expert. Check the local rules on being a fact witness and also testifying as an expert.
Refusal to answer an IME question is not evidence. At most, it’s a discovery violation. And not likely. Repeated refusal to show up for an IME can be sanctioned with dismissal. But showing up to an IME and answering medical questions should be plenty. The IME doc has access to the whole record. It’s not plaintiff’s fault if they don’t answer a dickhead doctor’s questions to the doctor’s likings.
The focus is on the evidence that IS in the record. Whatever the physician wanted to hear is NOT evidence and is only an opinion that has nothing to do with the rules of evidence.
Stick with what IS in the record. The fact that the doctor wanted answers to questions hoping the answers would contravene the record is of no consequence. They can make him or her a fact witness subject to your objection. Or they can leave him or her as an expert witness. Who can offer an opinion on the basis of the facts that are actually in the record.
A1 gotta disagree a bit here.
Federal Rule 703 allows experts to rely on hearsay to form an opinion, and explain that hearsay if it has probative value. So there is risk here in providing statements the jury will hear. (i.e. evidence) and it doesn’t take a making them a fact witness to get there.
As to the specific issue, it will turn on the substance of the questions. If he’s refusing to answer current range of motion questions in a case where you are claiming a permanent impairment, those are probably fair. If he’s refusing to answer what he was doing before the accident that has nothing to do with the medical side of it.
Not my understanding of FRE 703. Could be different circuits or something.
But I think the caselaw is pretty clear that the rule is not a back door to hearsay statements from parties or witnesses.
I think the majority view is the hearsay exception, at least in this context, primarily relates to medical test results when those results have not been authenticated by the person who conducted or interpreted the test.
For example, the expert can rely on an interpretation of MRI results without calling the radiologist to authenticate the images.
I do not think the rule can be used for an IME doc to say he told me the light was red when he said in his deposition the light was green.
Are you filing motions for protective orders prior to your CMEs?
I’m not positive I follow your question. Generally, any fact a physician elicits from a plaintiff that is presented in an IME report is hearsay. For purposes of summary judgment, that hearsay cannot be considered because it is inadmissible in form. Therefore, any opinion formed on the basis of inadmissible hearsay is on very dicey ground, to say the least.
As a clerk, I recommend against relying on an IME opinion that is based on evidence that is not in the record through the plaintiff’s deposition, medical records, or other documentary evidence. An IME opinion can only be relied upon to show there is a basis upon which a reasonable juror could find against the plaintiff. IME opinions do not offer facts that can be used to show the existence or absence of a material factual dispute.
Hope that helps? Not sure if that’s what you’re asking.
Atty 3 is correct. Look into filing a motion to limit the scope of the CME. This occurs all the time in Florida state court. Not sure about your jurisdiction.
Thanks for your reply, and I should clarify that I’m a new associate and have been learning this from my boss, so I might have some of this wrong. This comes up where the plaintiff has already been deposed and then the defendant’s physician has the plaintiff give narrative facts that aren’t clearly related to condition (it’s a blurry line) like “how did this happen” but press for a million details. My understanding is several problems arise from this like, can be used to impeach if client says something different from depo and also can come in under hearsay exemption statement of party opponent. My current issue is that our client refused to answer a bunch of questions about the accident that were unrelated to the injury (on my boss’ instruction) and defendant wants to redo the IME.
Does that make more sense?
Thank you! That helps put it in context for me. In our current case, the defense attorney is going to try to compel another IME on these grounds, arguing that plaintiff didn’t comply with the first one. I’ve been researching trying to find a case that directly addresses this issue and says these questions aren’t in play for an examining doctor so refusal to answer them isn’t grounds for a second IME. Wasn’t finding anything directly on point.