Discovery – The Arcane and the Mundane – Boring, Yes, but the Foundation on Which Your Case is Built
Last month’s column was devoted to an explanation of the pre-trial process of discovery, and its importance in the litigation process. We primarily focused on the deposition, also known as the Examination Before Trial, or EBT. We explained the importance of an EBT to the successful outcome of the case, as well as its importance to the trial itself. We now focus on the defendant’s right to conduct a physical examination of the plaintiff.
By making a claim for an accident-related personal injury, the injured client puts her physical condition into issue, and the client bears the burden of proof on that issue. The defendant has the right to contest these allegations of injury, and therefore has the opportunity to have his own doctor examine the plaintiff. While this examination is popularly known as an Independent Medical Examination, or IME, that term is a misnomer, and should be permanently banished from the litigation lexicon. The reason is that there is nothing independent about the examination. Instead, the physician is paid by the defendant’s insurance company to examine the plaintiff and draw conclusions as to whether the plaintiff suffers from the claimed condition, and whether that condition is related to the accident. Yes, the entity which has every financial incentive to disprove that the plaintiff’s injuries are serious and are caused by the accident as contended, pays the physician for the examination.
The Defendant’s Medical Examination, or DME
The truth is that there is nothing independent about this examination, and that the examination is more realistically a Defendant’s Medical Examination, or DME. Words matter, and the White Plains accident attorneys at Worby Vecchio Edelman never refer to the examination as an IME; we constantly correct insurance adjustors and their counsel who still use this incorrect term.
What occurs at the DME is crucial. How long did the doctor take to examine the plaintiff – there have been reported instances where a doctor took less than five minutes to perform the physical on which negative conclusions were drawn. Did the doctor conduct a full range of appropriate testing to draw his or her conclusions? Did the doctor review the plaintiff’s medical records prior to the examination in order to ensure that a full history was taken – any doctor would agree with the principle that a patient’s medical history is crucial to determine a diagnosis. We fully prepare our clients for the DME, and instruct our clients on what to expect, what to avoid stating to the doctor, and the permitted parameters of the examination. On many occasions we will send a representative to accompany the client to the DME to witness and report on the examination.
The New York State Trial Lawyers Association
The attorneys at Worby Vecchio Edelman LLP are members of and supporters of the New York State Trial Lawyers Association, or NYSTLA, which provides resources to assist us in case preparation. NYSTLA provides a transcript bank of experts, so that we can review opposing doctors’ prior testimony to determine prior admissions made, and to determine if there is conflicting testimony between what was previously stated under oath, and a doctor’s conclusions in our client’s particular case. Many of these “independent” doctors are actually insurance company regulars, who frequently examine dozens of plaintiffs per month, and who earn significant sums of money from performing such examinations.
We Meticulously Prepare All Cases for Trial
Media portrayals of the legal system invariably focus on the trial itself – it is the obvious focal point and highlight of a case. Similar to a good paint job, preparation for trial is crucial; without good preparation the trial is less likely to have a successful outcome. The White Plains accident attorneys at Worby Vecchio Edelman meticulously prepare all cases for trial, even though the majority will be resolved well prior to a trial date. We can’t prevent an insurance company from retaining a physician to harm our client’s case, but we can and do take all necessary steps to explain to the client the purpose of the examination, and how to best conduct herself.
Contact our White Plains Accident Attorneys
There are many other aspects of discovery which can be used to our advantage, and other aspects that can be used by insurance companies to defend a case. In future columns we’ll focus on the use of social media by defendants and their insurance companies, and the ways that a plaintiff can cause significant harm to a case through its use. The White Plains accident attorneys at Worby Vecchio Edelman have over 150 years combined experience in the personal injury field. Call us if you or a family member have been injured in any type of accident. We provide a free, no obligation consultation, and there’s never a fee unless we recover money on your case.