The “Defense Medical Exam”, Or “DME” – There’s Nothing “Independent” About It

The “Defense Medical Exam”, Or “DME” – There’s Nothing “Independent” About It

One of the tactics disreputable insurance company use to safeguard their money at all costs is to attack people who have been injured.  They do this by forcing them to be examined by dishonest doctors who give false opinions to the jury so as to reduce or eliminate the claim.  To many insurance companies, when someone makes a claim, the company wages an all-out war, and will do anything to try to make the injured person look like a liar.

This common insurance company tactic literally “adds insult to injury.” This common defense strategy of sending injured people to doctors who are paid not to give truly objective opinions, but to give false opinions simply to help the insurance company deny valid claims.  These experts can include doctors, psychologists, neuropsychologists and many other fields.

The verdict is going to be paid by an insurance company, in almost every case, by the way, even if the company is not being directly sued and nobody talks about insurance during the trial.  The insurance company is behind the scenes, pulling the strings and controlling everything that happens in the defense of the case, even though their customer seems to be the one who is being sued and is present in court.  Many states have laws forbidding the lawyers from telling the jury that there’s an insurance company involved, or even mentioning the insurance company’s name.  See my blog post on that topic here:

Why Missouri Law Prohibits Lawyers From Telling Juries That There’s Insurance To Pay Their Verdict

There are good and bad people in every field, including both lawyers and doctors. But in a sad and perverse example of bad conduct being rewarded, insurance companies tend to use the same DME doctors over, and over, and over again, because those doctors will give the opinions the insurance company wants, regardless of whether or not it’s the truth.

I want to make it clear that I’m not saying any doctor who does defense exams is a liar. The vast majority of physicians are truthful and honest.  But because they’re truthful and honest, many insurance companies use honest doctors infrequently or not at all, preferring instead to repeatedly use doctors who will say exactly what the insurance companies want to hear.  Or more accurately, what the insurance company wants the jury to hear.

And to get the jury to think that this doctor really is giving an objective opinion, insurance companies and defense lawyers love to call these “independent medical examinations”, or “IME’s.”  The simple truth of it is that this name is completely false, as there is nothing “independent” about it.

Why Would A Doctor Lie?

To be blunt: Money. The amounts these doctors make from insurance companies is off the charts. I’ve seen doctors testify that they make over $1 million a year just from doing defense exams on a part-time basis!  That’s $1 million year in addition to the money they make actually treating patients!

These doctors are extremely aware that if they stop giving opinions to help the insurance company deny claims, the company will send this stream of patients to some other doctor, resulting in the doctor’s losing that huge income source.

It amazes some people that doctors would blatantly lie.  When I first started practicing law, I didn’t believe it either. But then I saw it. Personally, and firsthand. Again, and again, and again.  These doctors are still just people, and people aren’t immune to the lure of easy money.  Dishonest DME doctors are people who’ve sold out, and are willing to say anything to keep the gravy train going.

“I Don’t Believe Doctors Would Lie!”

If you’re reading this and saying “That’s not true. You’re exaggerating. Doctors wouldn’t blatantly lie!”, then I strongly urge you to read this:

IME abuse? Read the transcript of Dr. Rosalind Griffin in a terrible truck accident case and decide for yourself

It’s a detailed account by a lawyer of his cross-examination of a doctor whose examination of an injured person was videotaped.  Even though that exam was videotaped, the doctor still blatantly lied in her report.  She simply made things up in order to defeat the claim!  That webpage even includes a link to the entire word-for-word transcript of the doctor’s testimony, see you can read for yourself just how much this physician falsified what was in her report.

For example, Dr. Griffin said that the injured person had made “statements” to her that “he has been improving” or that “he has improved.”  That would clearly help minimize the injury and decrease the potential verdict. But when questioned about exactly when in the videotaped examination the injured person said anything like that, Dr. Griffin couldn’t find it.  She said “I don’t know that I can point that out in my notes.” (Pages 105/106) and “Not a quote,” and “You won’t hear it in a quote.” (Pages 112/113).

What’s Supposed to Happen In A DME?

Here’s what’s supposed to happen when an honest physician performs an impartial examination on the part of the defense:

1. gets a letter from the insurance company or their lawyer asking them to do a defense exam;
2. is objective and keeps an open mind at all times;
3. treats the injured person just the same way they would their own patient;
4. is provided with all of the patient’s medical records;
5. reads them carefully;
6. Injured person comes in for an appointment;
7. carefully takes a complete relevant medical history (just as they would for a patient that they were treating);
8. only asks questions having to do with the injury, and doesn’t ask questions which are important to the case but unimportant to the medical evaluation (for example, “Which car had the red light?”, etc.)
9. carefully examines patient, making accurate, complete notes of all of their observations, test results, etc.;
10. writes a report explaining all of their findings, and giving their opinions.

And if the doctor’s being honest and careful, that is exactly what will happen.

What Happens In A DME If The Doctor Is Dishonest?

If the doctor is one of those ones who is dishonest and being paid to write a report favoring the insurance company/defense no matter what the truth is, here are some things that will frequently happen:

1. gets a letter from the insurance company or their lawyer asking them to do a defense exam;
2. is not objective and does not keep an open mind;
3. views everything in the file in the way most favorable to the insurance company, and never in favor of the patient;
4. receives less than all of the patient’s medical records;
5. skims the records, but does not read them carefully;
6. Injured person comes in for an appointment;
7. refuses to allow the patient to record or video the examination;
8. refuses to allow the patient’s lawyer or paralegal to be present;
9. refuses to allow anyone else who came with the patient to be present;
10. does not let the patient fill out forms (because then it would create a clear paper trail about what the patient actually said, and take away the Dr.’s ability to put words in the patient’s mouth);
11. takes a medical history, skewing most things (or everything) towards helping the insurance company (such as by blaming symptoms on older injuries);
12. may actually lie about what the patient said their symptoms were (either leaving things out or making things up);
13. may actually lie about what the patient said their history was;
14. may actually lie about what the patient said about their past medical treatment;
15. performs a hurried and/or superficial exam;
16. performs some tests, but will not perform certain tests the doctor thinks that may confirm an injury;
17. doesn’t record 100% of the results on the tests they did do, frequently only recording the test results when they’re good for the insurance company, and leaving out test results if they’re bad for the insurance company;
18. may actually lie about what the patient could or couldn’t do in physical tests or the results of the doctor’s examination;
19. writes a report giving the defendant, their insurance company and defense lawyers fictional excuses to not pay the claim.

What Kinds of Things Will Dishonest DME Doctors Say?

Dishonest DME doctors are very creative in finding things to tell the jury as reasons why the defense/insurance company should win.  They generally want to go as far as they possibly can to minimize the injured person’s claim, while still trying to seem like they’re being reasonable.  Here are some examples of common dishonest DME doctor claims, all designed to help the defense:

1. The patient is simply not injured at all;
2. The patient is injured, but it’s not from the incident which the lawsuit is about, but is instead caused by an earlier incident, or a later incident, or an unrelated disease or condition, or anything else they can come up with;
3. The patient is not injured and is lying and faking it (sometimes claiming that they can “prove” this is shown by “inconsistent test results” supposedly showing “lack of genuine effort”, or other supposed evidence);
4. Even though the patient genuinely believes that they’re hurt, it’s all in their head, and they’re actually not hurt at all;
5. If it’s impossible to claim the person’s not hurt at all, the DME doctor will admit that there actually is an injury, but do everything they can to minimize it, including:
   1. claiming that the injury will somehow get better on its own over time (after the trial’s over, of course);
   2. claiming that even though there is an actual injury, the person is exaggerating their symptoms, and it’s not as bad as they claim;
   3. claiming that because studies have shown that X% of people with this injury say that they are back to normal in Y months, and this patient says s/he isn’t, s/he must not be telling the truth;
   4. claiming that they don’t need any future medical treatment (even though their actual treating doctor says they do);
   5. claiming that while they while they do need future medical treatment, they don’t need as much treatment as they claim, or that the cost of the future medical treatment is less than the amount claimed;
   6. claiming that the cost of future medical treatment should be paid by somebody else, because the injured person has (or will have) Medicaid, or Medicare, or private health insurance, or Obamacare, or Tricare, etc.; and/or
   7. claiming that the cost of future medical treatment should be discounted, because the person will get discounts because the injured person has or will have Medicaid, or Medicare, or private health insurance, or Obamacare, or Tricare, etc.

I’ve even seen cases where insurance company claims that the jury should give the injured person less, because the cost of “lifelong” future medical treatment will be lower than expected, because the injury caused by the defendant has shortened the injured person’s life expectancy!!

Aren’t There Doctors Who Lie In The Injured Person’s Favor?

Unfortunately, yes, there are doctors who lie in favor of the injured person as well.  But those doctors are much more easily exposed because the link between the doctor and the injured person’s lawyer can be clearly pointed out a trial. Every time a doctor gets on the stand, the defense attorney will ask the physician “How many times have you testified for this lawyer?” and the jury will hear the answer.  If the plaintiff’s lawyer and the crooked doctor are working together to falsely exaggerate a claim, the defense attorney will be able to successfully point out to the jury how they’ve worked together 50 or 100 times.

But the opposite is not true. As described above, Missouri law generally prohibits anyone from telling the jury that there’s insurance involved in the case.  So, the injured person’s lawyer typically isn’t allowed to point out that Dr. Johnson was hired by Allstate Insurance Company in this case, and that he’s been hired by Allstate 100 times before.  While it is proper to get the doctor to admit that 90% of the doctor’s court testimony is on behalf of “defendants,” that testimony doesn’t really forcefully make the point that this doctor has deep financial ties to the insurance company defending the case.

And asking the defense doctor “How many times have you testified for this defense lawyer?” really doesn’t make the point, because the common link isn’t the defense attorney, but is instead the particular insurance company, which may use dozens or even hundreds of different defense law firms.

Summary

In summary, there is nothing “independent” about “independent medical examinations,” precisely because the typical defense Dr. makes huge amounts of money from insurance companies by doing these examinations and testifying at trial.  While some doctors doing defense exams are  fair and honest, a significant portion of them are done by doctors willing to say anything to convince jurors, all to save money for the insurance company that’s paying them.