In many personal injury cases, the defendant and his or her insurer will raise two important questions:
- What really caused the claimant’s injury?
- How bad is that injury?
If the medical records do not make it clear that the injury was caused by the accident and that the injuries are as might be expected, the insurer will often request that the claimant see a doctor selected by the insurer for an examination. Theoretically, this exam is to confirm the actual medical situation. The claimant can expect in most cases, however, that the report will be that the injury was caused by something else or isn’t as bad as the claimant claims.
Can They Do That?
The answer is yes. Once someone makes his or her medical condition an issue, the law says that he or she has given up his or her right to privacy on medical matters to the extent necessary to resolve the dispute. Generally speaking, anything after the accident may be reviewed, and so may potentially related matters from before the accident. Oregon and Washington lawyers routinely agree to examinations because they can help bring cases to quicker settlement. (These exams also sometimes are requested in family law cases to argue for support, to show paternity, or for their effect on a child custody decision.)
Parties also are allowed to request opposing parties submit to a medical or psychological examination if it can show the court there is good cause and that medical conditions are disputed, but the courts usually approve examinations in personal injury cases. Details of time, location, scope, and, so forth, may require negotiation.
What Can Be Done About It?
The best way to dispute an independent exam is to contradict it. The person being examined, or their observer, should take careful notes of how the exam is conducted so that any shortcomings in the process can be followed up.
Washington allows the person being examined to have an observer attend the examination, but not to interfere. In Oregon, and in federal court, this is a point for negotiation. Washington allows the examination to be audio recorded, and if the parties agree or the court orders it, video recorded. In Oregon, and in federal court, all recordings have to be agreed or court-ordered. Some judges in Oregon tend to allow observers and recording; some do not.
Second, the person being examined should get the doctor’s name so that his or her record can be checked. For example, in Oregon, some judges will allow discovery of the percentage of the doctor’s income from examinations and similar work, as a determination of whether the doctor may be biased. Some will not.
In Washington, the doctor has to give a copy of his or her report to the person examined without request of the person examined. As a result, this report can be reviewed and questions to challenge the conclusions prepared. In Oregon, and in federal court, the person being examined has to request the report and pay for it, and deliver reports of any similar exams by his or her own doctors and expert witnesses. Usually, his or her lawyer will make the request as part of the agreement for the examination if he or she thinks it’s worth the expense and if he or she doesn’t want to hold back reports that otherwise wouldn’t be disclosed.
If you are pursuing a personal injury claim of any significant size, be prepared for the insurer to ask for your examination. If the request comes, talk to your lawyer about how to prepare and how to collect information needed to challenge the report.