Tips for IME Physicians and Experts
at Deposition and Court
From the moment you are hired to render a second-opinion on behalf of an insurance carrier or law firm, you are also considered an "expert". At the time of the Independent Medical Examination (IME) or document review, you should realize that there is a chance you may be deposed and/or called to testify to the accuracy of your findings in a Court of Law. Your demeanor, credentials and findings are now called into question by counsel. The following tips will help you achieve your position as expert.
Keep Your Practice Active
A good expert witness knows that medical-legal consulting should be done as a supplement to one's practice. Attorneys, for the most part, want licensed, Board-Certified, practicing physicians. If you are an expert witness who simply testifies for a living, you don't appear unbiased, but more like a "hired gun." Thus, it's important to maintain an active list of patients you treat, not just consult.
Remember, there is no doctor-patient privilege for IMEs, you are hired solely as a consultant to render a second-opinion. All your findings should be found in your "IME Report" which should only be sent to those parties authorized to receive your report. You should never discuss your findings or recommendations with the patient, family members, treating physicians or opposing counsel. If you need to discuss a certain aspect of the case, it should be done with the firm who hired you. You can also address your concerns in your report or in a separate confidential memo. Your role is as a consultant, thus no physician-patient privilege exists. A statement such as this one would help clarify that no doctor-patient relationship exists:
"The above-captioned claimant was examined in accordance with the restrictive rules concerning an independent medical examination. It is therefore understood that no doctor-patient relationship exists or is implied by this examination."
Videotaping During the IME
It has been found to be within the patient's rights to videotape and record the IME. As the IME physician, you must allow a videotape or recorder into your examination room. Failure to do so could result in an aborted IME and could cost the defense the chance to have the claimant examined. If you feel intimidated by this action, you should not delay the exam, but remain professional and calm, and go about your exam, as you would do under normal circumstances. Any taping or form of intimidation can be noted in your report. For New York State Worker's Compensation IMEs, the physician can also videotape the exam as long as it is indicated on the IME appointment letter to the claimant. (IME-5)
Your examination should be thorough and complete. The length of the actual exam varies upon what parts of the body are being examined. This can take anywhere from as little as fifteen minutes to hours, depending on the doctor, testing and complaints. It is helpful to use range of motion testing and certain other tests to guide you in your exam. This will help you identify your exam upon testifying and qualify your opinion when called into question.
Your examination findings are generated in what's called an IME report. Your diagnosis and opinions will be based on subjective complaints, patient history, treatment to date, review of medical records and your own objective findings. If the patient has a Liability case, your findings should stay within the confines or allegations in the Bill of Particulars or Complaint. If the claim involves a Workers Compensation case, your exam should stay within the confines of what is being considered causally related to the accident in question. Also, stick to your area of expertise; in other words, do not comment outside your area of specialty. Similarly, you should not state that this person needs to be seen by a different specialty, unless of course you are asked. Answer the questions that are being asked of you only. Above you signature, a perjury statement should appear attesting to the findings in the report:
" I declare, under the penalties of perjury, that the information contained within this document was prepared and is the work product of the undersigned, and true to the best of my knowledge under the penalties of perjury."
You are not automatically authorized to take x-rays or other testing that will cost more than your fee for the IME. You should call for approval for extra fees that were not previously agreed upon.
The people who are hiring you are looking for an honest, impartial opinion. When testifying on same do not attempt to hide the truth. If the truth were to come out later, it could destroy your credibility and lead to perjury, civil and possibly criminal actions.
Your Role After the IME Takes Place...
You should maintain your own records on each physical exam conducted. Bring your medical records, (i.e. report as well as hand-written notes), with you to the deposition or Court so that you can ultimately show how you came to the conclusions in your report. If there are drafts of your report due to typographical errors, you should make sure that an original and final signed copy is maintained in your office. If new records are provided to you that you did not have at the time of examination, it is best to address new issues in an addendum. Do not make changes to your final report.
Meeting with Counsel
Whether by teleconference or in person, at some point you should be amenable to speaking with the attorney on the case. They are here to guide you in your testimony and to brief you on potential questions that might be asked. As the "expert witness" in this case you will want to comply with the request for a meeting so that you can be as prepared as possible. At this initial meeting, you may want to discuss any financial arrangements for your time at deposition and in court so that you won't have any questions about your compensation.
You should know your own credentials and maintain a current and up to date copy of your Curriculum Vitea. It should be brought with you to the deposition and Court. Questions may be asked as to your Credentials, Board Affiliations and Eligibility, License Verification, Areas of Practice, as well as restrictions on same and adverse action. Be honest and truthful, failure to answer a question in a truthful manner can lead to negative connotations. Remember, good preparation can help avoid impeachment so know your credentials.
Payment for Expert Testimony
The most frequent complaint made by experts is payment for services. Many times the cases settle before they ever reach Court or the case will settle on the Courthouse steps. Where does this leave the expert who set aside the time out of his/her schedule to be at the Court? The answer is really very simple. Most experts will agree that the best way to handle this situation is to charge a retainer or half of the money upon booking the date and time, and the other half upon testifying. In this way, you will be guaranteed compensation for your time even if the case settles before you testified.
During your examination and upon testifying, your attitude is important. You do not want to appear biased, angry, cocky or unprofessional in any way. Do not allow the other side to push you around or make you feel uncomfortable. If you are feeling intimidated, then the other side is properly playing out their role in the great game of litigation, but don't allow it to get to you. The best advice in this situation is to remain calm and focused and be prepared.
If you need to take a break during the deposition, ask for one. Don't be afraid to ask for a brief recess if you need to collect your thoughts or are feeling like you would benefit from a break.