There has been an ongoing disingenuous attempt by certain members of the plaintiffs' bar to recharacterize independent medical examinations (IMEs) as defense medical examinations (DMEs). While it may not seem like an overwhelmingly crucial distinction in the grand scheme, such attention to detail can occasionally play a role in ‘tipping the balance’ in an otherwise close case. In addition, the mere insinuation, without any proof to boot, that the professionals who perform these examinations are engaged in some sort of unprofessional conduct merely by performing these examinations is dishonorable.
Wisconsin courts have repeatedly utilized the term independent medical examination when referring to an examination that a claimant undergoes in the presence of health care professional at the request of a party resisting the claimant’s claim. See, e.g., Aslakson v. Gallagher Bassett Servs., 2007 WI 39, ¶ 15, 300 Wis. 2d 92, 100, 729 N.W.2d 712, 716; Miller Brewing Co. v. LIRC, 173 Wis. 2d 700, 719, 495 N.W.2d 660, 667 (1993); Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 293-94, 254 N.W.2d 255, 259 (1977). It is appropriate to use the word “independent” in the descriptive term for such examinations because the very nature of a profession is such that it requires its practitioners to exercise independent professional judgment. See, e.g., Kashishian v. Port, 167 Wis. 2d 24, 34, 481 N.W.2d 277 (1992) (radiologist); NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 589, 114 S.Ct. 1778, 1788, 128 L.Ed.2d 586, 601 (1994) (“Professionals, by definition, exercise independent judgment, . . . “) (nurses); NLRB v. Ky. River Community Care, Inc., 532 U.S. 706, 721-22, 121 S.Ct. 1861, 1871-72, 149 L.Ed.2d 939, 952-53 (2001) (nurses); Quilico v. Kaplan, 749 F.2d 480, 485 (7th Cir. 1984) (physicians and surgeons).
This is not to say that there are not professionals in any industry, whether it be doctors, lawyers, engineers or the like, that are not as scrupulous as other professionals. However, to generally insinuate that any professional who performs a medical examination at the request of a defendant is somehow complicit in a scheme to defraud the plaintiff is disingenuous and should be defended against for both the sake of the professional and to avoid any mischaracterization in front of the jury.