The "Independent" Medical Examination: What Injured New Yorkers Need to Know Before They Go

If you are pursuing a personal injury claim in New York, sooner or later an envelope arrives with a notice telling you to appear for an independent medical examination, usually shortened to IME.

The name sounds reassuring. It suggests a neutral physician who will simply take a fair look at you and report what they find. That is not what an IME is. In every one of these cases, the examination is arranged and paid for by the insurance company or by defense counsel, and the doctor is selected by them. Understanding that distinction before you walk into the room is one of the most useful things you can do for your case.

Here is what an IME actually is, why you are required to attend, what happens during the

appointment, and how to prepare.

What an IME actually is

An independent medical examination is a medical examination performed by a doctor who is not your treating physician. That doctor is not there to treat you. They will not prescribe medication, recommend a course of treatment, order follow-up care, or do anything to advance your recovery. The sole purpose of the examination is to evaluate your claimed injuries from the perspective of the defense and the insurance company.

It is not a second opinion. It is not confidential. It is not a wellness check. It is a discovery tool, and the report that comes out of it is written for the other side.

Why you have to attend

Under New York law, when you bring a personal injury lawsuit, you affirmatively place your physical condition in controversy. Once you do that, the opposing side has the right to have you examined by one or more physicians. In practice, they always exercise it.

That is the logic of it. If your physical condition is part of the case, and it is part of every

personal injury lawsuit, the defense is entitled to have a doctor examine you, prepare a report, and testify about you at trial if the case gets that far.

There is a second context where IMEs appear, and it catches people off guard: no-fault

benefits. In automobile cases, an insurance carrier is only required to pay no-fault benefits to the extent the treatment is reasonably necessary. So the carrier will often send a claimant for an IME to decide whether continued benefits are justified. What frequently happens next is predictable. The doctor concludes that further therapy or treatment is no longer needed, and the carrier stops paying.

What happens if you skip it

Not appearing creates serious problems, and they are not the kind that resolve themselves. In litigation, missing court-ordered examinations can lead a court to preclude you from proving your physical injuries at trial. That is, in practical terms, close to a dismissal of your case, particularly in a motor vehicle case where proving a qualifying injury is the whole fight.

In the no-fault context, failing to appear can result in the carrier cutting off future benefits entirely. And if bills have not yet been paid, you can be left personally responsible for the cost of your own treatment.

You can dislike the process. You cannot ignore the notice.

What the appointment actually looks like

Expect something quite different from a visit with your own physician.

The intake. You will typically be asked how the incident occurred, what treatment you have received, what your current complaints and symptoms are, and how your injuries affect your daily activities and your enjoyment of life. You may also be handed a questionnaire covering the same ground.

The physical examination. The doctor then performs an exam in their own specialty. An

orthopedist will usually test range of motion and strength. A neurologist will check reflexes, ask you to perform certain movements, and assess range of motion.

The length. This is the part clients tend to find surprising. Some of these examinations are thorough. Many are not. Clients have reported physical examinations lasting less than five minutes. A short exam does not stop a lengthy report from being written about it.

You are being observed the entire time

From the moment you enter the building until the moment you leave, you are being evaluated. That includes how you move in the waiting room, how you get on and off the examination table, and how you carry yourself walking in and out. You may even be asked how you got to the appointment. If the location is inconvenient, the question of whether you drove yourself, took mass transit, or needed a car service is not idle small talk. It goes to your reported limitations.

None of this is a reason to perform or to exaggerate. It is a reason to understand where you are.

How to prepare

The single most important principle is consistency.

IMEs almost always take place after the plaintiff’s deposition, also called an examination before trial. The symptoms you describe at the IME should largely mirror the complaints you gave under oath at your deposition. Inconsistencies between the two are exactly what the defense is hoping to find.

Beyond that:

• If something hurts, say so.

• If a movement is beyond your limits, do not attempt it.

• If you do not remember something, say you do not remember. That is far better than

guessing.

• Do not exaggerate. Your medical records will speak to your condition in large part. Your

job is to be accurate, not dramatic.

• Be polite, be cooperative, and treat the appointment seriously.

Watch for overreach

Our firm sends a representative to accompany clients to these examinations, and there is a specific reason for that: these doctors like to overreach.

Especially in motor vehicle and slip and fall cases, examining physicians often push into territory that has nothing to do with a medical evaluation. They ask detailed questions about how the incident occurred. They probe prior unrelated injuries and surgeries. A client answering in good faith can easily hand the defense something useful without realizing it.

If you do not have a representative with you and something does not feel right, pause. Call your lawyer. Do not sign anything you do not fully understand. The worst outcome at one of these appointments is disclosing something you were never obligated to disclose.

What the report will probably say

It helps to know the destination in advance.

These reports tend to reach one of two conclusions. Either your injuries have resolved, or, if they clearly have not, your injuries were not caused by the incident in question and are instead preexisting or attributable to something unrelated to the defendant’s negligence.

You can expect language to the effect that you have recovered, that you can return to work, that you require no additional treatment, and that your symptoms are not related to the trauma.

That does not necessarily mean the examining physician is dishonest. It means the examination exists to support the defense, and these are the tried and true defenses raised at trial. Knowing that in advance is precisely why preparation matters.

The bottom line

If you receive a notice for an examination, whether it comes through your no-fault carrier or through the litigation, do not panic, and do not ignore it. Calendar the date. Call your attorney before you go. Make sure you understand what will happen in that room and that everyone on your side is on the same page.

At Kramer, Dunleavy & Ratchik, we represent injured New Yorkers through every stage of the civil litigation process, including preparing clients for these examinations.

If you have questions about your claim or want more information, contact our firm and we will be glad to help you understand your rights.

Jonathan Ratchik, Kramer, Dunleavy & Ratchik, PLLC.

Experience you Expect. Commitment you Deserve.

This article is general information about New York personal injury practice and is not legal advice. Every case turns on its own facts. Speak with your attorney about your specific situation. (Attorney Advertising)