In Ontario, personal injury lawsuits and accident benefit claims where there is doubt about the extent of the injured persons (plaintiff) injuries, the defense has a legal right to arrange further medical examinations and assessments. Remember, the defence, is working on behalf of the insurance company. They are hired to mitigate insurance payouts and will always express disagreement and doubt regarding the plaintiff’s injuries and rights to compensation. In almost every personal injury claim, the plaintiff will be required to undergo further medical examinations and assessments arranged by the lawyers for the defense.
IME is a short form for Independent Medical Exam and DME is the short form for Defense Medical Exam. The terms are interchangeable for the purposes of this article.
Do I have to attend defense medical examinations?
Generally speaking – yes. In order for your personal injury claim to be successful, you (the injured plaintiff) must submit to attending any legitimate and reasonable defense medical examinations (DME). There may be situations where your lawyer may refuse your attendance and request protection or limitations from the DME if it is unreasonably demanding, threatening, unjustly invasive or onerous. The defense is looking for every possible indication that you are standing in the way of the “truth” or obstructing justice. If you refuse to go, the defense will say you have something to hide and that you are “malingering” or faking the injury or degree of disability.
It is also necessary to attend the defense medical examination on time. The defense is looking for ways to discredit your diagnosis and your credibility. If you are late by a few minutes, they will take the stance that is a black mark against your character, and use it against you. If you are very late for the DME appointment, you could miss the meeting completely and you will very likely be charged for the doctor’s time. These medical practitioners are highly paid and a missed DME, usually paid by the defense/insurer could become a hefty bill that the plaintiff must pay.
Will I be seeing a real doctor/medical practitioner?
You will be seeing a real medical practitioner, however, unlike your own physician, the defense practitioner/doctor does not intend to see how serious your injuries are. Instead, defense experts are more likely to distort evidence in favor of the insurance company. He/she is not there to listen to your symptoms with sympathy and support, but instead he will be listening with with suspicion and speculation. He may be abrupt and rude to the point of accusing you of exaggeration regarding your injuries or outright lying.
He may try to trick you into making physical movements that you are reportedly unable to do without pain. A defense doctor might suddenly jump up during conversation with the plaintiff and say, “I don’t believe it! Look what’s happening out the window!!” It would be instinctive to move suddenly in such a circumstance, even though an injured person could cause further damage and pain. If a plaintiff with a neck problem, does quickly jolt his head sideways to look, the actions will be negatively reported and be part of the case against him in court.
I completed these same tests with my own doctor a week ago. Why can’t they use the results of those tests?
The tests you had done with your own doctor cannot be used because your doctor and the defense doctor have opposing objectives.
The tests administered by your own doctor are intended to discover the reasons for your symptoms and come up with a diagnosis to better understand and heal your injuries. The relationship between your own doctor and yourself is built on mutual trust, and respect.
The defense doctor is hired for the opposition and is not trying to help solve your problems or heal your injuries. His sole objective is to find discrepancies and counter the case you are building, and your actions. He has been hired to prove that your injuries could not be as serious as you say and that amount of your benefit claim is ludicrous.
No one would choose to see a doctor who clearly does not have his or her best interests at heart. With the defence doctor you don’t have any choice.
Do I need to prepare before my defence medical exam?
Make sure you discuss DME preparation with your personal injury lawyer ahead of time.
Your lawyer may ask you to go over copies of your past medical history. The DME doctor will ask you about your current injuries and how they affect your life post accident. He will ask about your life before the accident and whether or not you experienced similar pain or injury. If you have at any time, suffered from a similar injury, and failed to tell the doctor, he will assume you are guilty of purposely lying to protect your own interests. In many cases, plaintiffs, were not intending to be dishonest, but genuinely forgot a brief and unrelated, pain episode from 15 years ago.
Sometimes the defense doctor will tell you that things must be done a certain way to follow procedure. His procedure may have nothing to do with what the law requires. Ask your own lawyer ahead of time with regards to dealing with the specific doctors and or DME appointments.
Will there be paperwork I have to sign?
Ask your injury lawyer whether or not there will be waivers or paperwork that you will be required to fill in and sign at the DME. If possible get copies of these ahead of time from your own lawyer. Do not agree to sign anything without first consulting your lawyer. It is important that you do not go into more detail than is essentially required during your DME. What you consider friendly conversation may yield personal information that the defense doctor can manipulate into speculative and damaging evidence. Find out from your lawyer if there is anything specific you should be watching for regarding verbal or written questioning with this particular examination and doctor.
What if the defence report is different than the test results from my doctor?
Do not worry if the examination notes and observations from the same examinations are not the same. The results from the DME are certain to be different than the ones from your own doctor. Do not take it personally. They are for different purposes: one is to protect your rights and the other is to attack them. Again, do not take the examination personally, but do take it very seriously.