Thinking of an IME Without a Fight? Think Again.

WDC Journal Edition: Summer 2014
By: Jessica A. Swain, McCoy Leavitt Laskey LLC

It seems all too often that cases involve a plaintiff seeking unreasonable compensation for injuries sustained in a relatively minor incident. Typically, as these types of cases progress, bumps and bruises warp into incurable and ever-lasting injuries affecting every aspect of a plaintiff’s daily life.

As exaggerated and unrealistic as some of these injuries may seem, surprisingly, the plaintiff’s complaints are often supported by a remarkable medical opinion typically provided by a hand- picked doctor of plaintiff’s choosing. By the time these records hit your desk, you think you have a sense for what you’re about to read as the complaint and other case-related documents have provided a preview into the severity of plaintiff’s claims. Upon extensive review of the medical records, however, you come across not what you expected, but rather, inconsistencies between plaintiff’s reported injuries and those noted in the medical records. You quickly uncover that plaintiff’s strategically described claims are significantly undercut by his own doctors’ notations, which indicate not only the improvement of plaintiff’s symptoms but also that plaintiff has returned to the activities he once enjoyed. Naturally, you become increasingly wary of plaintiff’s complaints, and as such, you seek a second medical opinion by way of an independent medical examination (“IME”).

It has long been the procedure that when the physical or mental condition of a party is at issue in a case, independent medical examinations become a common component of the lawsuit. It is at this stage of the litigation that you should prepare yourself for a barrage of attacks against the doctor you’ve chosen to perform the IME. Plaintiffs’ attorneys commonly complain that independent medical examiners are anything but “independent,” and rather, provide untrustworthy opinions motivated by the financial compensation given for rendering them.

Because courts are given leeway to specify the time, place, manner, conditions, and scope of the examination, to remedy these perceived injustices, some plaintiffs’ attorneys have conditioned their clients’ voluntary participation in the IME upon being able to make a video or audio recording of the same. No Wisconsin case directly addresses whether and under what circumstances videotaping an IME is appropriate. There is some authority, however, addressing whether a third party may be present during an independent medical examination. That case is the Wisconsin Supreme Court’s decision in Whanger v. American Family Mutual Ins. Co.1

Whanger concerned a personal injury automobile negligence action, and specifically addressed whether the trial court had the “authority and discretion to order the presence of plaintiff’s counsel during the independent medical examination.”2 In deciding whether to allow plaintiff’s counsel to be present at the IME, the court noted that the plaintiff had the burden to show a need or prejudice.3 Only if the plaintiff could meet that burden could the court then exercise its discretion to determine whether counsel’s presence would be appropriate.4 This burden to show need could be met by showing that “the character, personality or sophistication of the personal injury claimant [was] such that his counsel could give him assurance and confidence and assist in communicating so as to be beneficial to the examining physician and provide for a more accurate examination.”5 Alternatively, the plaintiff could establish prejudice by showing that the presence of plaintiff’s counsel was necessary to preserve the integrity of the examination.6 As the trial court had not considered these factors in deciding whether to allow counsel to be present at the examination, the supreme court remanded the case for a hearing on that specific issue.7

Going forward, Wisconsin courts will presumably apply the Whanger factors in considering a request to have an IME video or audio recorded. Notably, the Whanger analysis has been specifically adopted by other jurisdictions in resolving whether to allow a plaintiff to videotape an IME. In the New Jersey case of Briglia v. Exxon Co., U.S.,8 the court used the Whanger analysis in deciding whether to allow an IME to be videotaped. In deciding this issue, the Briglia court quoted the following discussion in Whanger, which regarded whether to allow counsel to be present at the IME::

Opposing counsel’s presence is not necessary and ordinarily he can add nothing to the adequacy of the examination. There may be instances where the character, personality or sophistication of the personal injury claimant are such that his counsel could give him assurance and confidence and assist in communicating so as to be beneficial to the examining physician and provide for a more accurate examination. There also may be instances of hostility between the physician and the claimant. In these and other situations where a need or prejudice is established, counsel should be permitted to be present. However the burden to show need or prejudice should be upon the claimant.9

The Briglia court ultimately did not allow the IME to be videotaped because plaintiff’s attorneys had identified no reason why a video recording would be beneficial other than to allow the firm to “zealously” represent its clients.10 In adopting Wisconsin’s standard, the New Jersey court held that if a plaintiff fails to introduce specific reasons justifying his request to make a video or audio recording of the IME, such as by failing to show an inability to effectively communicate with an examining physician or by failing to demonstrate hostility between the plaintiff and the physician, the court should deny the plaintiff’s request.11 Because Briglia adopted Wisconsin law and applied it to resolving the issue of video recording IMEs, the case is helpful authority for Wisconsin defense counsel who wish to conduct an IME of the plaintiff without interference.

When confronted with this issue, defense counsel should be cautious, as some plaintiff’s attorneys cite to unpublished or heavily criticized opinions as support for their request to videotape an IME. For example, one opinion in particular, Zabkowicz v. W. Bend Co.,12 has been criticized by nine jurisdictions. In Zabkowicz, a decision from the Eastern District of Wisconsin, the court decided that recording devices were appropriate during an IME. The Northern District of Illinois, however, was one of those nine jurisdictions critical of that decision, and in Haymer v. Countrywide Bank,13 the court noted not only thatZabkowicz had departed from prior case law that prohibited plaintiffs from interfering with IMEs, but also that the case has not been followed by any subsequent courts.14

Zabkowicz aside, it has long been recognized that independent medical examinations are not adversary proceedings.15 Instead, they are investigative in nature and therefore, the presence of counsel at an IME, or the video or audio recording of the same, adds no value to the examination.16 In fact, it arguably detracts from it. Perhaps most importantly, and what plaintiffs’ attorneys most often seem to forget, is that examining doctors are bound by medical ethics during these independent evaluations and, as such, there should be no reason to question their integrity.

Jessica A. Swain is an associate attorney at Mc- Coy Leavitt Laskey LLC and primarily practices in the areas of litigation and insurance defense. As a former Assistant District Attorney, Jessica has extensive trial and advocacy skills. During her time References in the District Attorney’s office, she handled both criminal and civil litigation matters on behalf of the State of Wisconsin and successfully litigated a variety of matters including drug offenses, firearm offenses, and child abuse cases. In addition, Jessica successfully first chaired several bench and jury trials and was named the head of the drug unit. Since joining McCoy Leavitt Laskey, Jessica has success- fully defended cases involving construction defects, gas explosions, product defects, and catastrophic personal injuries. Jessica is a graduate of Marquette University Law School (J.D., 2009), and she received her undergraduate degree in political science from the University of Rochester (B.A., 2006). Jessica is a member of the State Bar of Wisconsin.

References

1 58 Wis. 2d 461, 207 N.W.2d 74 (1973).
2 Id. at 469.
3 Id. at 471.
4 Id.
5 Id.
6 Id.
7 Id. at 472.
8 310 N.J. Super. 498 (N.J. Super. 1997).
9 Id. at 505 (quoting Whanger, 207 N.W. 2d at 79).
10 Id.
11 Id. at 505-06.
12 585 F. Supp. 635 (E.D. Wis. 1984).
13 2013 U.S. Dist. LEXIS 28186, Case No. 10 C 5910 (N.D. Ill. Feb. 22, 2013) (unpublished decision).
14 Id. (citing Stefan v. Trinity Trucking, L.L.C., 275 F.R.D. 248, 250 (N.D. Ohio 2011)). 15 Whanger, 58 Wis. 2d at 471. 16 Id.

© 2014 Wisconsin Defense Counsel. All rights reserved. Swain, Jessica A., Thinking of an IME Without a Fight? Thing Again., Wisconsin Civi Trial Journal (Summer 2014)