Independent and Defence Medical Examinations – Part #8 on Injury Litigation

Part 8 of a 10 part series describing the litigation process created to help our clients.

The Entire Series: Ten Steps in the Litigation Process

1. Litigation Step #1 – Filing a Statement of Claim
2. Serving a Statement of Claim
3. Work With Insurance Adjuster vs. Statement of Defence
4. Preparing & Serving an Affidavit of Records
5. Litigation and Questioning (a.k.a. Examination for Discovery)
6. Attending Questioning by Defence
7. Attendance at a Questioning on Undertaking Responses
8. Attend at Independent Medical Examinations and Defence Medical Examinations 
9. Prepare & Attend Mediation – The Mediator Role in MVA Litigation 
10. Prepare and Attend Trial in Injury Law Litigation

In this edition….

Your lawyer may want you to go and see a medical expert to get an Independent opinion on your car accident injuries and your prognosis for the future. Alternatively, the Defendant’s insurance lawyer may want to send you to a Defence Medical Examination. What follows is a typical ‘advice letter’ to a client attending at a Defence Medical Examination

The lawyer for the insurance company for the party at fault in your motor vehicle accident has requested that you submit to a so-called “Independent Medical Examination” (NOTE : this is not in reality an “Independent” Medical Examination – the doctor that will examine you is not neutral. It is more accurate to call it a Defence Medical Examination – or ‘DME’ for short). The defence insurer has hand-picked the doctor they want to conduct the examination. They are entitled to ask for this examination under the “Rules of Court”. You are required to submit to this medical examination and we would like you to have some information as to what this is all about before you attend.

There is nothing “Independent” about the doctor that will be examining you. They work for the defence and likely someone they regularly use for such examinations.

Because the other side is the one setting this up they will be paying for it. We do not have the right to refuse it.  The doctor’s office will make arrangements with you (usually with our assistance) for the time and place for you to attend.

Although the doctor who will examine you is a qualified medical doctor (and sometimes is a specialist) don’t forget that he is “working for the insurance company”. He usually has his own regular medical practice (sometimes they are retired from active practice). They are not NOT there to treat you, nor to give you medical advice. This doctor has but ONE purpose when doing the DME, and that is to prepare a medical report for the Defence lawyer. While this doctor’s opinion is not final, it may have some influence on future negotiations or on a judge if the case goes to trial.

When you attend the DME, it is important for you to remember the following:

1. It is perfectly okay to speak with the doctor or any of his/her assistants.
2. The doctor cannot be someone who has treated you before. If you think that you have been seen by this doctor at some time in the past, please stop the process and inform me immediately.
3. Make sure you get to the appointment on time. Make proper arrangements for time off work, child care and parking, etc., so you are not distracted. Often such appointments are be completed in 1 hour, but it might be shorter or longer. You may be asked to put on a hospital gown (remember, this is a real doctor).

During the Defence Medical Examination,

1. Answer every question fully, truthfully and honestly – however, do not volunteer any information that is not requested;
2. Do not do anything to “obstruct” the assessment; you are required to co-operate;
3. Neither exaggerate nor under-play your injury or problems;
4. The doctor may enquire both as to your injuries and the effects they are having on your life, whether they are causing you any disability (problems); be prepared to answer;
5. The doctor can ask you any “relevant question”, and you should answer; if you do not understand the relevance, or do not agree that the question is relevant, you are entitled to challenge it (e.g. if they ask questions about your spouse or family members you do not have to answer);
6. If you don’t understand a question, ask the doctor to explain it;
7. If you are having injury-related problems with work, school or daily activities (sleeping, eating, housekeeping, yard-work, recreational, etc.) and you are asked about these things, you must fully inform the doctor of the problems. Feel free to volunteer information about any difficulties you are having with functioning due to the injuries;
8. The doctor does not have the right at this time to ask that you submit to any invasive tests (such as X-rays, CT scans, blood tests, etc.); if this is requested, politely refuse and refer the doctor to our office. If we determine that you should submit to such testing, that can always be done later.

It is VERY important to ensure that your own family doctor and other treating professionals (chiropractor, physiotherapist, etc.) fully understand everything about your injuries and the effects these are having on your life as well. Make sure you inform your own treatment providers regularly about your injuries and the impact that your injuries are having on you.

Ensure that you attend the DME appointment once it is booked.

Email us with details about your case.