Discovery: Medical Examinations

You filed a lawsuit after being unable to settle your personal injury claim and are now undergoing the pre-trial discovery phase. This phase is complex, as it typically consists of several discovery tools used to gather admissible evidence relevant to your case. Discovery tools include depositions, interrogatories, requests for production of documents, and requests for admission.

Medical examinations are another crucial component of the personal injury lawsuit discovery phase. For starters, medical records after your accident are needed to prove that you were, injured and that the subject of the lawsuit caused your injury. Requests for the production of documents will most likely include requests for documentation of your post-accident treatment, medical examinations, diagnoses, and other medical records related to your accident.

The defense will argue that you are not as injured as you claim to be or that your injury was caused by something other than the subject incident itself. To build a case that refutes the medical claims of you or your doctor, defendants and their insurance carriers might use one of two methods: “Independent” Medical Examination and the Peer Review. Here’s what you need to know if this happens to you.

What are “independent” medical examinations?

Under Virginia Supreme Court Rule 4:10, the defendant can require additional proof that you were actually injured in the accident and are therefore entitled to compensation for your injuries. If that is the case, they can require you to submit to a Rule 4:10 examination, commonly referred to by the defense as an independent medical examination or “defense medical examination.”

While the defense will refer to these examinations as “independent,” such is not the case. The examination is performed by a doctor of the defense’s choosing, who the insurance company pays to examine you physically. Following the examination, the doctor will opine on your injures and what is and is not related to your lawsuit. These medical examiners will more than likely agree with the defendant’s theory of the case to your detriment.  The medical examiner is then required to file a report with the Court that may be read into evidence by the plaintiff.

Defense medical examiners are not on your side 

Even though the defense calls them “independent medical examinations,” you should not view the examining doctor as independent and unbiased. The goal of an exam requested by a defendant is to obtain information that contradicts your claims or minimizes your injuries. The doctor that examines you will likely testify on behalf of the opposition. Insurance companies will frequently use the same medical doctor to examine a plaintiff to refute a claim because it knows that doctor will likely give them a favorable report.

While you should always be truthful and not exaggerate pain or symptoms during your exam, you should not freely offer the doctor information–this person is not on your side. After the examination, the physician will write a report summarizing their findings and send it to defense counsel, who then submits it to the Court. Your personal injury attorney will help guide you through the defense medical exam process, so you go in well-prepared. Your personal injury attorney will often work to have an order entered with the Court limiting the scope and extent of the defense medical exam.  Additionally, an experienced personal injury attorney will prevent the defense from referring to the exam as “independent” during trial and will elicit evidence during cross examination of the doctor to show that he/she is a hired gun.

What is a peer review?

The defendant can also request a peer review, which is a medical expert’s analysis of the medical records they have received from you and any subpoenas they may have issued. The medical expert conducting the peer review will likely look at all other discovery information as well, such as deposition transcripts, interrogatory answers, and any photographs that may exist. Since you are not being examined or tested directly like you would in a defense medical examination, peer reviews are considered attorney-work product and do not have to be disclosed unless the party wishes to use that medical expert as a witness in their case.