LEVELING THE PLAYING FIELD OF DEFENSE MEDICAL EXAMINATIONS

By Jon Katz

NOTE: This article is adapted from a reply posted by partner Jon Katz to a discussion on a trial lawyers' listserve about defense medical examinations. 

    When an injury victim claims that the defendant caused permanent physical or psychological injury, the defendant likely will request an examination by a health care professional through a defense medical examination. The defense uses the euphemism "independent" medical examination, even though the defense hand-picks and pays the so-called independent medical professional. 

Here are a few thoughts beneficial to lawyers for leveling the playing field with DME's:

- When the other side requests a DME, ordinarily I reply with a letter that by the DME going forward -- absent a reply from opposing counsel -- the conditions listed in my letter will stand . The conditions I often list in my letter are: the DME doctor must be agreed upon; the DME time and place will be mutually agreed upon; plaintiff has no obligation to bring anything (e.g., radiographic films) other than herself; the interpreter, if any is needed, will be mutually agreed upon and will be the same sex as the client (if there is to be disrobing); plaintiff will answer no questions not made in the presence of the DME doctor (chuck those patient intake forms handed to the plaintiff); plaintiff will attend the DME with an audiotape running and/or a witness (within the subpoena power of the jurisdiction (perhaps even a nurse)); if the DME doesn't start within ninety minutes of the designated time, plaintiff may leave; within ____ days after the DME, plaintiff's counsel will be provided all documents by and to the doctor concerning the DME; no invasive tests will take place absent advance arrangement possibly requiring a return visit; no more than ______ x-rays will be taken, and reproductions will promptly be made to plaintiff at no charge; the defense will provide full flexibility in scheduling a discovery deposition of the DME doctor, even if that means the presence at the deposition of another attorney from defense counsel's firm.

-- In Virginia, this ordinarily results in the opponent's prompt filing of a motion to compel a DME. This also ordinarily results in opposing counsel narrowing their issues substantially out in the courthouse hallway and presenting the remaining contested issues to the judge (Virginia's wild -- when you file a motion, you note a hearing date that will take place within as short as two weeks).

-- In Maryland and DC, if the opponent has requested a DME too close to the close of discovery (which often they do), this often will win us agreement to get some important DME conditions that we want. Therefore, challenge the DME request not only based on the designated doctor. Some judges might give relief even if they don't strike the faraway doctor who repeatedly testifies for the defense (e.g., ordering the defendant to pay for a professional driver to transport the client to the faraway DME and to pay for plaintiff's extra lost time from work for going the extra distance (particularly if plaintiff was in a terrible collision and remains fearful of driving, plaintiff shouldn't have to drive the long distance)).

- You may gain extra confidence from and bonding with your client to know that it was the judge who forced the client to submit to the DME shenanigans, and not you. Also important, this is another opportunity to show your opponent and the insurance carrier that you're a fighter, you're a good/great fighter, and that the settlement offer best be re-evaluated because there's more for defendant to lose at trial than the defense previously realized. Moreover, this gives you another opportunity to understand your opponent in preparing for your final fight in the case -- the trial.

February 2004.

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     Welcome to Marks & Katz, where we fight tirelessly for justice for our clients, with 30 years of combined experience. We are driven to win, put our clients ahead of money, and are ever-passionate for our clients and their causes. Our law partners Jay Marks and Jon Katz serve our clients directly, with caring and understanding. Jay and Jon met in 1969, attended public school together, trust each other deeply, revel in the thrill of victory, and fight side by side. We opened in 1998, and look forward to many more years of doing good for our clients and society. We are dedicated to justice, welcome tough cases, and never shy away from controversy. 

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