Preparing An Injured Client for the Defense Medical Examination in Virginia
A feature that might surprise somebody who’s never been involved in major automobile accident and injury litigation is the defendant insurance company’s right to force the injured person to see a doctor chosen by and paid for by the insurance company for the at‑fault driver.
If your injury is serious enough that it is causing chronic or permanent problems and there’s enough money at stake in the case, the insurance defense attorney is likely to ask the court to make you go see a doctor of their choosing. It’s really an incredible intrusion but the other side in the case is able to force you to go see a doctor who gets to poke and prod on you knowing full well that they intend to say that you’re not hurt or not as hurt as you say you are. That opinion testimony favoring the defense and insurance company is the whole reason for the defense medical examination.
One of the things that I try to do to lessen the problems created by being forced to go to a hired gun doctor for the other side is to really prepare my clients for the experience. I explain in detail to my client who has been hurt in a Virginia auto accident, to understand that this doctor is not there to treat them, make them feel better or do anything to help them at all.
This is not a typical doctor whose job it is to heal someone. Rather this doctor’s job is to testify for one side – the side that’s paying them. Not all defense medical examiners are so completely venal that they’ll say whatever the insurance company wants them to say. However, those who choose to do this kind of work and get paid vast sums to do it do know what side of the bread the butter’s on. So I explain to my client before going in there that no matter how nice the doctor may seem the client needs to realize that they are there to do a job which is to help the other side to get away with paying as little as they can get away with paying and not to do anything therapeutic. The main advice is to understand the role of the defense medical examiner and to be extremely clear and honest about the symptoms.
One thing that has been a hot topic for personal injury attorneys in Virginia is how to record the encounter. In the old days, we just sent our clients in to be with this defense doctor and then whatever the defense doctor wrote in his report was largely irrefutable. Nobody was going to believe the plaintiff when he says that the doctor didn’t actually perform that test or that his response to it was different than what the doctor has described.
So I have taken to demanding to have either an independent nurse hired by me in the appointment, a relative of the plaintiff, a court reporter or videographer to take down exactly what’s said and done or some other method to have objective proof of what was and wasn’t said and done. I have found that at least the defense lawyers will agree to allow my client to have a tape recorder in the interview so that there is an audio recording of exactly who said what. In addition to having a backup to confirm what really was said by my client, I think the recording device acts as a bit of a deterrent from a more unscrupulous defense doctor who might be willing to fudge things. If they know that at least there’s an audio recording they may not be able to simply report whatever they want to.
On rare occasions in some of the most catastrophic cases, the defense medical examiner actually confirms what the plaintiff’s own treating doctors have already been saying. They’ll say yes they have these serious injuries including broken bones, that they came from the wreck in question, and that they are going to cause some permanent problems. On those rare occasions the insurance company is forced to pay a bit more money than they would otherwise. They never bring that doctor to testify if his report is favorable to the plaintiff.
However, if we really like the report sometimes we on the plaintiff’s side actually subpoena that doctor to come and tell the jury what he found which is all the more damning to the defense if it comes out of the mouth of somebody that they chose, paid for and expected to help them. If you have suffered a personal injury due to the fault of another, I would like to hear from you. Call our Virginia injury lawyers at (757) 455-0077 for a free consultation. Find out more about John Cooper by clicking this link.