In our series on civil litigation in Oregon, we are making our way from the very beginning of a lawsuit in Oregon court, all the way through trial. A big part of the pre-trial process is “discovery,” which is essentially an exchange of information between the parties. There are several different discovery devices, including the request for production, the request for admissions, and the deposition. This article discusses in a not so objective way, the “independent” medical exam, which is essentially a defense doctor medical examination.
This form of discovery is not a matter of right, but for all practical purposes, it is when a party is alleging a personal injury. Under the rules, the defense attorney must file a motion with the court asking for an order allowing the examination. However, in practice, the parties will often agree to an examination, with conditions.
These examinations are also available in Washington, but interestingly, a plaintiff’s attorney is permitted to actually attend the examination, which is not the case in Oregon.
Many insurance companies or the attorneys who represent them will use a selected few physicians to perform these examinations, which makes it pretty easy to predict what the resulting opinion will be after the examination concludes. Some physicians make very handsome incomes doing nothing but these insurance defense medical examinations, travelling from county to county, and even state to state to testify for the defense. In a trial about ten years ago, a defense retained doctor charged a flat fee of over $4,000.00 to testify for about two hours. In another case, again quite a few years ago, we learned of a doctor earning over $200,000.00 in one year doing nothing but examinations, not including his fees for testimony. In that case, the doctor was still seeing patients two days a week.
Not all these doctors are hired guns, however. Some are real doctors, meaning they actually treat patients, and have been called upon by both Plaintiff and Defense to give an opinion. These, doctors, however, make up the minority of the pool of physicians who regularly conduct examinations.
Defense medical examiners will often perform special tests known as “distraction” or “cross-testing” to determine whether not the examinee is giving good and honest effort on examination. These physicians will also use “Waddell” testing to determine once again whether or not an examinee is responding appropriately to test. In many cases, these tests may be inappropriately administered, and are not reliable indicators of an examinee’s voluntary effort.
Many defense medical examiners are astute witnesses, and have been subjected to cross-examination on several occasions. When we prepare a case for trial, there is no shortage of trial testimony to review for many of these physicians.
If you have an injury claim in Oregon or Washington, and have questions about undergoing a defense medical examination, call us at 503-325-8600. We have extensive experience in dealing with this and other issues common to injury claims.