The function of an independent Medical exam is to independently evaluate the nature and extent of injuries or condition, so as to adequately assess whether the treating physician’s conclusions about ability and disability are correct. However, independent medical exams are often treated by fact finders with suspicion.
As a preliminary matter, let’s begin by defining the landscape. Typically, the insurer defendant seeks an independent medical examination (IME). However, in some states, when the injured party disputes their treating physician’s evaluation, they may also request an examination. But the inescapable fact is that the party seeking the IME pays for the exam, which the other side may use to argue bias. What’s more, the party seeking the exam will likely call on a physician they have used in the past. In this case, the other side may argue that the motive is one of personal gain, citing the potential for the physician to warp the findings since the payor is a source of regular business. Thus, the theory goes, the expert will continue to render favorable opinions so as to keep the business.
When selecting a medical professional to conduct an IME, there are three key steps that can be taken to reduce the other side’s suspicion that the medical professional you have hired has a motive for personal and/or financial gain.
1) Acknowledge Inherent Bias
In a perfect world, there would be a way to hire a doctor for an independent medical examination without the doctor knowing who is paying the bill. However, we don’t live in a perfect world. Most medical professionals insist their opinion is not for sale, and most truly believe their assertion. However, scientists who study cognitive bias will point out that the problem with cognitive bias is we don’t always know it is influencing our decisions.
Some medical professionals have incorporated ways to deal with the problem of bias in their ethical rules. For example, the American Academy of Ophthalmology’s Rule of Ethics 16 covers expert testimony. It states, in part, “Expert testimony should be provided in an objective manner using medical knowledge to form expert medical opinions. Nonmedical factors, (such as solicitation of business from attorneys, competitions with other physicians, and personal bias unrelated to professional expertise) should not bias testimony.”
Similarly, the American Academy of Pediatrics recently issued a modified policy statement regarding ethical business practices, including the following standards for pediatricians testifying as experts in legal cases. According to the modification, physicians shall:
Lend their knowledge, experience, and best judgment to all relevant facts of the case regardless of the source of the request for testimony (plaintiff/prosecutor or defendant)
Render an opinion only after reviewing sufficient medical records and documents to enable the formation of unbiased and accurate conclusions. If all medical records are unavailable for review, recuse themselves from serving in an expert capacity or acknowledge that their expert opinion is based on limited information
Not exclude relevant information for any reason and certainly not to create a perspective that favors either the plaintiff/prosecutor or the defendant
Provide objective, valid opinions that are well supported by their clinical experience and the best evidence-based medical literature, regardless of whether it is to be used by the plaintiff/prosecutor or defendant
When working with independent medical examiners, referencing your understanding of their ethical issues can contribute to reducing the potential for bias. Attorneys can take this even further by reiterating they are hiring the expert for their expertise, not seeking to purchase one opinion over another.
2) Anticipate Perceived Motive For Personal Gain
A certain amount of strategy must be employed to reduce the amount of material the other side can use to challenge an expert’s opinion based on a perceived motive of monetary incentive. To reduce the argument that the independent medical examiner has motive to minimize/maximize injury claims, attorneys must anticipate how a jury will perceive certain aspects of the physician’s background, as well as the grounds on which the examination occurred, and work against those biases before commencing the IME.
First, select a physician who is board certified and practicing in the field. (Some states, such as Texas, have a designated list of physicians who have met the requirements of the state, including training, testing, and certification through the Division of Worker’s Compensation.) This is not to say that a semi-retired physician whose primary work is offering independent medical examinations can’t be correct in their conclusions. Rather, this approach simply recognizes that a physician who generates their income through IMEs will face a lengthy cross-examination on that issue. This has the potential to distract a fact finder from the issues at hand.
Next, when communicating with the independent medical examiner, consider conveying your expectations in writing. When forwarding medical records, for example, make sure that the language in your communication clearly defines your expectations. The following is a sample of such language:
Enclosed please find the medical records of the plaintiff and findings of Dr. X, the treating physician (insert detailed list of all records and findings here). Please rely on these records, as well as your medical exam, peer-reviewed literature, and the appropriate medical guidelines to formulate and support your opinions or conclusions.
I look forward to your report.
It may also be helpful to include similar language in the retainer agreement, reiterating you are paying for the doctor’s time, experience, and knowledge, regardless of what the medical opinion ultimately is.
3) Establish Ethical Fee Agreements
Fee agreements should be based on the medical professional’s normal per hour rate. The agreement should not be reduced for volume, nor increased due to the litigious nature of the examination. Under no circumstances should an expert’s fee be contingent on a particular outcome. This may implicate ethical concerns for the medical professional, as well as provide a rich area of cross-examination for the other side. A good medical professional offers their expertise, time, and experience. The opinions and conclusions themselves, however, should not be for sale.
When selecting and working with an independent medical examiner, respect for their credentials and experience should translate into respect for their conclusions. Attorneys and medical professionals have ethical obligations which preclude them from buying or selling medical opinions. While it is human nature to want to “win,” both lawyers and doctors have an ethical obligation to be mindful of potential biases and external motivations, and do what they can to negate them.
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