Why Does The Defense Request An Independent Medical Exam In A Serious Injury Case?
Defense medical examinations, or DMEs, are requested primarily to counter a particular line of cross-examination that questions the credibility of defense experts who have never examined the plaintiff. By conducting a DME, the defense expert can claim firsthand experience with the plaintiff, thereby strengthening their credibility in court. This examination allows the defense to better compare their expert’s findings with those of the plaintiff’s experts, particularly in terms of who has actually seen and assessed the plaintiff.
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Can Someone Be Required To Attend A DME, And What Happens If They Refuse?
Attendance at a DME is not automatic, but a court can require it if the defense makes a specific showing of need under rule 204 of the Texas Rules of Civil Procedure. A defendant must file a motion and provide an affidavit from their expert explaining the necessity and scope of the DME. If the court deems the DME warranted, the plaintiff must comply or risk sanctions. While physical injury cases usually result in some form of DME, mental health DMEs are harder to obtain due to their invasive nature.
How Independent Are These Exams, And Who Chooses The Doctor For The DME?
DMEs are not truly independent, as the defense hires and selects the doctor performing the exam. Typically, the doctor is someone already involved in the case, having formed opinions based on medical records prior to the exam. These doctors understand their role as advocates for the defense rather than impartial medical professionals. They are often well-known in their respective areas for performing such exams and tend to be motivated by the challenge and financial benefits.
What Is The Defense Usually Trying To Achieve By Sending Someone To A DME?
Beyond diffusing certain cross-examination tactics, the defense often seeks to gather opinions on future medical treatments. By conducting a DME, experts are better positioned to contest claims of necessary ongoing treatment or surgery. This examination allows them to assert that the plaintiff does not require further medical intervention, challenging the plaintiff’s life care plan or diagnosis of permanent injuries.
What Kinds Of Opinions From A DME Can Significantly Damage An Injury Claim?
While DMEs rarely provide meaningful help to defendants, they can introduce damaging opinions, such as malingering tests like Waddell signs, which indicate that a plaintiff’s pain response may be exaggerated or fabricated. However, such findings are uncommon. In practice, DMEs often do not significantly alter the case’s outcome, though they can occasionally weaken comparisons with treating physicians.
How Often Do DME Doctors Dispute Causation Even With Difficult-to-challenge Injuries?
Disputing causation is common, but DMEs typically do not reveal new information. The defense expert often has preconceived opinions from reviewing medical records and uses the DME to reinforce these views. Their role is not to treat the patient but to provide opinions that align with the defense’s arguments, often disregarding any established doctor-patient relationship.
Are There Patterns Among Doctors Who Frequently Perform DMEs For Insurance Companies?
Doctors who regularly conduct DMEs are often seen as advocates for the defense. They approach cases with the intent to support the hiring side’s position, much like other retained experts. These doctors are not neutral and are aware that their continued employment depends on delivering opinions favorable to the side that hires them. Their conclusions are typically predictable and align with the defense’s narrative.
Have You Seen Cases Where A DME Report Shifted Settlement Leverage Or Litigation Direction?
While rare, DME reports can occasionally alter settlement dynamics, particularly if they uncover unexpected support for the plaintiff’s claims, such as validating a surgery recommendation. However, this is uncommon. Most often, DMEs do not significantly change the direction of a case, as the outcomes are largely predictable and serve more to reinforce existing defense strategies.
How Do Plaintiff Attorneys Challenge A DME Report They Believe Is Biased Or Unsupported?
Plaintiff attorneys primarily use cross-examination to challenge the credibility of DME reports. They may also file motions to exclude unreliable expert testimony, though success is not guaranteed. These motions, based on cases like Daubert and Robinson, aim to prevent junk science from influencing the jury. However, judges often allow the jury to hear differing expert opinions and decide their validity, making cross-examination a crucial tool for undermining biased DME findings.