A plaintiff in a personal injury action may be required to submit to a physical or mental examination. For example, see Wis. Stats. sec. 804.10(1), Ill Sup. Ct. R. 215 and Fed. R. Civ.P. 35(a). While these examinations have, over the years, always been called “Independent Medical Examinations" (IME's), the plaintiffs’ bar now routinely objects to the use of the term “Independent” and refers to such examinations as “Defense Medical Examinations.” Sometimes, plaintiffs go further. They demand that the court prevent the defense from even using the term “Independent Medical Examination” at trial. They ask the court to adopt the term “Defense Medical Examination” as the court-approved term for such statutorily-allowed examinations and insist that the defense’s expert be called the “Defense Medical Examiner.”
These attempts should be resisted by the defense. Here’s what to tell the court to show that the term “Independent Medical Examination” is the one to use.
- History is on our side. The term "Independent Medical Examination" has long been used by Wisconsin Courts. (See eg. Aslakson v. Gallagher Bassett Servs, 2007 WI 39, ¶ 15, 300 Wis. 2d 92, 729 N.W.2d 712; Miller Brewing Co. v. Labor & Indus. Review Comm’n, 173 Wis. 2d 700, 719, 495 N.W.2d 660, 667 (1993) and Karl v. Emp’rs Ins. of Wausau, 78 Wis. 2d 284, 293-94, 254 N.W.2d 255, 259 (1977).) The term is not a recently concocted rhetorical device designed to give one side or the other an advantage. Further, the statutes and the rules don’t give the right to request such examination only to the defendant, but to any party when the opponent’s physical or mental condition is at issue.
- The term “independent” is factually the appropriate term to use. The word accurately describes such expert’s role. The very nature of a “profession” such as medicine is that it requires its practitioners to exercise independent professional judgment. (See Pamperin v. Trinity Mem’l, 144 Wis. 2d 188, 200, 423 N.W.2d 848, 852 (1998) (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, . . .”); NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 722, 121 S. Ct. 1861, 1872, 149 L. Ed. 2d 939, 953 (2001) (nurses); Quilico v. Kaplan, 749 F.2d 480, 485 (7th Cir. 1984) (physicians and surgeons).) Mandating the use of the term “Defense Medical Examination” would represent an attempt to improperly insinuate – wholly without proof – that a professional who consents to conduct such an examination at the request of a defense is doing something inherently biased and therefore unprofessional.
- Finally, it is for respective counsel to persuade the jury as to the credibility and believability of this or any other expert witness. Plaintiff’s counsel is free to suggest to the jury that the physician called by the defense is not truly independent. However, the court must not intercede by adopting the plaintiff’s preferred term as the court-approved label or, worse yet, by prohibiting the defense from using the time honored and appropriate words “Independent Medical Examination.”
Plaintiff’s counsel can try to characterize independent medical examiners in a manner which advances the plaintiff’s case. This is a part of advocacy. However, the defense must fight attempts to scrub the time-honored term “IME” from the trial and to insert plaintiff-friendly language in its place.