IME Bias in Civil Litigation

Lawyers USA has a good article in the wake of the breathtaking expose of IMEs by the New York Times:

Independent medical exams remain a controversial issue between parties in personal injury and workers’ compensation cases.

After The New York Times published a series of articles at the end of March looking into independent medical exams in the state of New York, lawyers across the country began talking about the contentious issues surrounding IMEs.

One major issue is that “there are only so many doctors [who do IMEs] out there and we tend to see the same folks over and over again,” said Ronald V. Miller, a partner at the Law Offices of Miller & Zois in Baltimore, Md. who focuses his plaintiffs’ work on serious motor vehicle accidents, products liability and medical malpractice cases.

Kenneth L. Shigley, a partner at Chambers, Aholt & Rickard in Atlanta, agreed. He refers to the exams as DMEs, or “defense medical exams,” on his blog, the Atlanta Injury Law and Civil Litigation blog.

“In my experience, insurance companies and defense lawyers always want to use a doctor whose view of things is pretty reliable and predictable as pro-defense,” he said. “There are some doctors who make it their main source of income to do these exams and who are notorious in the area.”

But Ronald G. Stephenson, a partner at Bullivant Houser Bailey in Portland, Ore., who has practiced insurance defense for more than 30 years, said that the “frequent flyer” system of attorney-doctor relationships works both ways.

“Plaintiffs’ attorneys will steer their clients to certain doctors” looking for the response their case needs, he said. “That’s the game that is being played.”

Miller acknowledged that both sides of the bar have relationships with doctors.

“It’s foolish to deny that there are biases on both sides,” he said. But, he claimed, “the bias is more pronounced on the defense side.”

Plaintiffs’ attorneys can take advantage of that bias, he suggested, by making jurors aware of it.

“We have to continue to put the issue before the jury. They generally get it right,” Miller said.

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