Are Independent Medical Examinations (IME’s) truly independent?
Insurance carriers frequently schedule Independent Medical Examinations, commonly known as IME’s. Among other things, the IME’s are used to determine if a worker has reached Maximum Medical Improvement (MMI) to justify no longer paying for medical treatment, or an impairment rating to determine the amount of permanent benefits.
Since the findings of the doctor that performs the IME have a huge impact on the value of the claim, it has been suggested that doctors used by insurance carriers are not truly independent, and insurance carriers pick doctors for IME’s that will help the insurance carrier’s save money. In fact, some attornys suggest the exams should really be called DME’s (Defense Medical Exams), because there is nothing independent about them.
The Kentucky Supreme Court has recognized IME’s may not be truly independent, and allows litigants to find out how much the doctor that performs the IME earns from them. It stated in Metropolitan v. Overstreet, 103 S.W.3d 31 (Ky. 2003):
It is undeniable that an expert’s tendency to slant his testimony may be affected not just by how much he is being compensated on one particular occasion, but also by how much of his annual income is derived from similar testimony. Tuttle, supra, at 923(agreeing that “certain expert witnesses derive a significant portion of their total income from testifying in litigation.”);Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980) (“[a] showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be hired to testify in future cases.”). A jury could reasonably believe that a physician who derives a substantial percentage of his annual income from CR 35.01 examinations, potentially earning hundreds of thousands of dollars every year from such examinations alone, might be tempted to slant his testimony to suit his employer. As the Supreme Court of Illinois has noted,
[T]he financial advantage which accrues to an expert witness in a particular case can extend beyond the remuneration he receives for testifying in that case. A favorable verdict may well help him establish a “track record” which, to a professional witness, can be all-important in determining not only the frequency with which he is asked to testify but also the price which he can demand for such testimony…. We thus find that it was proper to inquire how much Dr. Martins was earning annually from services relating to rendering expert testimony.Trower v. Jones, 121 Ill.2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297, 300 (1988).
The bottom line is most workers do not know much about the doctor that performs the IME/DME, and they should talk to an attorney familiar with the IME/DME doctor before making decisions based on an IME/DME report.