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Defense or Independent Medical Exams? August 25, 2009

Posted by Attorney Jonathan Groth in FAQ Personal Injury.

Actually, there is rarely anything “Independent” about medical exams requested by an insurance company. The insurance company pays for the exam. It’s easy to understand that the doctor is biased. This quote from an “Independent” medical doctor is eye opening: “If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.” Read the story from the New York Times. It deals with workers’ compensation in New York but it is certainly relevant for Wisconsin’s workers’ compensation claims. Something interesting about this article is the changes that NY has implimented for its “I.”M.E.’s. They allow the exams to be tape recorded or videotaped. Seems reasonable to me! In Wisconsin personal injury law plaintiffs’ attorneys who ask that an exam be taped or recorded receive a strong objection from the insurance company. Sometimes even having a friend or family member attend an exam isn’t allowed. Last I checked no Wisconsin Appellate Court has held whether a Defense Medical Exam (that is a more accurate description) performed for a personal injury claim may be tape recorded or videotaped. Federal Courts have held that a Defense Medical Exam regarding a psychiatric examination may be recorded. Zabkowicz v. West Bend Co., 585 F. Supp. 635 (E.D. Wis. 1974). (See this outline from an Insurance Defense Firm located in Milwaukee, Wisconsin).

Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in West Allis, Sheboygan, Plymouth, and Germantown.

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1. Noah Fiedler - August 25, 2009

Don’t get too worked up, Jon. Many plaintiffs go through a number of “consultations” before selecting the one doctor who will say just the right thing in just the right way. Like plaintiffs, insurance companies and defendants have every right to select the expert witness of their choice. I know that the even playing field often grates on you plaintiffs’ guys, but you’ve seemed to manage okay so far.

2. jonpgroth - August 28, 2009

Spoken like a good defense attorney. Remember that plaintiffs, more often than not, use their treating doctors as experts. Insurance companies, always, chose to pick their expert. When is the last time an insurance company petitioned the court for a truly “Independent” medical exam – chosen by the court.

I just tried a case that ended yesterday. Dr. Whitcomb testified for State Farm. He stated that he conducts about 1
medical exam per week for insurance companies. How many plaintiffs’ doctors do you know that do that?

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