1. Provide your client with a written summary of his rights and responsibilities prior to the examination. Make sure your client understands that the purpose of this examination is to uncover evidence that may be used against him, not to heal him. Remind your client that he has the right to refuse any invasive procedures that you were not advised of and given the right to object to ahead of time. Instruct your client not to discuss attorney/client conversations, as those are privileged and confidential.
2. Discuss with your client the importance of being honest with the doctor, and explain just how detrimental exaggerating can be. Explain, for example, that complaining of pain in areas that don’t really hurt diminishes the credibility of his complaints about areas that do hurt.
3. Have your client and one or more family members keep a diary. Although this seems like a simple task, your client may struggle with it. You can help by creating a “daily log” form for your clients to use. Instruct your client and the designated family member(s) to keep separate logs and to jot down notes in the morning and evening. Every 30 days, the logs should be sent directly to you. To encourage candor and full disclosure, instruct the spouse/family member not to show his diary to your client, who may take offense. Put a “daily log” form on your website, so your clients and their family members can access it at any time.
4. If you have a sympathetic client, send a court reporter and a videographer to record the examination, provided you can afford it and the court will allow it. Give the doctor and the opposing attorney written notice, in advance, that a court reporter and videographer will be present. (If you have a difficult client, do not videotape the defense exam. Imagine this scenario: You have a client who suffered brain damage; he is angry and, unfortunately, very disagreeable. You do not bring him to trial, but the defense brings the tape of the examination. If the jury dislikes your client from that video alone, that may be enough to gut your case.)
5. Caution your client not to sign anything unless or until you have had a chance to review it. Defense doctors can be sneaky. Your client may be presented with a release that includes language permitting the doctor to videotape the exam and destroy the tape at will; requiring your client to pay the doctor’s charges if the carrier is late or fails to pay; or allowing the DME to talk to your client’s treating doctor and anyone else he chooses about your client’s medical condition.
6. Ask about the scope of a physical examination. In a case involving a medical examination, demand to be told exactly what the doctor is going to do to your client. You may then object to invasive or experimental tests, or, more commonly, tests that already have been conducted. You might also have grounds to object based on the doctor’s lack of training to conduct a particular test.
7. Do not ask about the scope of a mental health examination. If the examination will be performed by a psychologist or psychiatrist, don’t ask about the tests. The defense team could use this to claim you trained your client to beat the tests.
8. Agree to open access to the experts’ files. Advise opposing counsel that you will only permit the exam to take place if he will agree that each of you has access to the other expert’s entire file. This way you can get the raw psychological data if testing is done. It will be easier to reach agreement at this stage, rather than later, because the defense attorney wants something from you.
9. Document your expert’s opinion. Doctors can surprise you. They can appear to be very supportive of your client—until another doctor disagrees with them. This tends to happen more often with young doctors, doctors who lack self-confidence, or doctors who are intimidated by highly credentialed experts. For this reason, always try to document your doctor’s opinion before the defense medical examination, to avoid the possibility that the doctor might be swayed by the hired gun. Send a letter confirming your understanding of the expert’s opinion, and have the doctor sign it.
10. Obtain a stipulation to preserve evidence. Demand a stipulation from defense counsel regarding the information and evidence gathered during the exam. Specifically:
- The exam will be recorded by your videographer.
- The exam will not be video- or tape-recorded by the defense doctor.
- The doctor will not interfere with the videotaping by standing in front of the camera, blocking the view of the plaintiff.
- The doctor will not touch or break any of the recording equipment.
- The doctor will not destroy evidence by:
- Throwing away or deleting draft reports;
- Throwing away handwritten notes;
- Deleting e-mails sent or received;
- Throwing away letters sent or received;
- Destroying films or surveillance material; or
- Removing notes on the file, whether written by the doctor or his staff.
11. Have your client schedule a same-day appointment with his treating doctor, within hours of the defense medical exam. The treating doctor can document things like spasms, rigidity, loss of range of motion, depression, etc., on the very day the DME finds nothing wrong.
12. Have your client photographed by a professional photographer on the day of the exam, if there are clear abnormalities present. For example, if your client has RSD (Complex Regional Pain Syndrome) of the ankle and foot, have that area photographed and dated within hours of the defense exam. Then, when the defense report comes back with no significant findings, bring the photographer to trial. He can show the jury the pictures of the ankle and foot, revealing that they had an abnormally dark and mottled color on the same day that the defense medical expert said your client looked fine.
* Extracted from Exposing Deceptive Defense Doctors, by Dorothy Clay Sims.
Dorothy Clay Sims practiced workers’ compensation and Social Security disability law for more than 25 years. During that time, she saw one sketchy defense expert after another try to take advantage of her clients, so she decided to take action. Ms. Sims spent over a decade studying psychological tests, physical exams, anatomy and electrodiagnostic studies, and learning how defense-oriented medical experts manipulate the data. The fruits of that effort are found in Exposing Deceptive Defense Doctors. Ms. Sims has given hundreds of lectures throughout the U.S. and in other countries, teaching lawyers how to fight back against the tactics used by defense doctors in a wide range of specialties.
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