The Defense IME: Sometimes It Is a “He Said, She Said.”

Though performing defense independent medical examinations is a necessary service in our society, the rewards must be few and far between for its practitioners. Where else in medicine is a person disappointed when told of good health?

The built-in dynamics of the defense IME make for a tense relationship between physician and examinee. That is why thorough documentation – and ideally, an observer – will go a long way in resolving any dispute over what happened in the examination room.

Dr. OS, an orthopedic surgeon, examined a 48-year-old woman who was a plaintiff in a personal injury action. Six years earlier, the woman was injured when her leashed dog became startled by a passing truck and pulled on her right upper extremity. She was treated extensively for that injury by a chiropractor.

Four years later, the woman alleged that an autistic child at the school where she taught pulled on her right arm, inflicting great pain. She underwent treatment by an urgent care physician and by her chiropractor and filed a workers compensation action. During that litigation, the woman was sent to Dr. OS for examination. The woman brought an audio tape recorder and taped the exam.

At the exam, Dr. OS reviewed the records and, as part of a typical defense exam, took the woman through “active” range of motion tests: That is, the examinee moved her own extremities and was told to stop when pain occurred.

In his notes, Dr. OS discussed the similarities between the dog-leash and classroom injuries and described objective results as generally normal. Dr. OS linked the probability of the woman’s right upper extremity weakness to the chronicity of her symptoms and lack of use. Dr. OS noted that he did not see the benefit of ongoing physical therapy.

Approximately a week after the exam, Dr. OS received a letter from the woman’s attorney complaining that his client suffered significant injuries from the examination. In her subsequent lawsuit (which followed a complaint to the Medical Board of California), the woman claimed that Dr. OS forcibly and aggressively moved her upper extremities and head past her physical limitations. The plaintiff alleged that Dr. OS exacerbated her existing injuries and also caused dizziness, nausea, upper back pain, visual disturbances and memory problems.

Pretrial workup of the case showed no radiological support for the plaintiff’s alleged injuries.

Even with Dr. OS’s detailed medical chart, trial of the case promised to be a “he said, she said” affair. And so in addition to presenting the usual testimony from medical experts on injuries and standard of care, the defense attorney concentrated on attacking the plaintiff’s credibility: Her description of Dr. OS to her massage therapist as a large, muscular, body-builder type man with no hair on his head or arms provided the perfect opportunity.

When the attorney brought Dr. OS to the stand, he went through the customary review of the witness’s C.V., medical records, and exam. He then asked Dr. OS, who did not physically resemble a burly weight-lifter, to roll up his sleeves. When the jurors saw the thick hair on his arms, they laughed audibly.

In the end, the jury found in favor of Dr. OS.

Probably the only thing that Dr. OS could have done to avoid the conflict with this examinee would have been to arrange for an observer at the exam. (The judge denied Dr. OS’s defense attorney’s bid to introduce the plaintiff’s audiotape because of its poor quality.)

Though arranging for such observers can add appreciable expense to a physician’s overhead, so can eight-day jury trials.

Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com