By Gerald H. Clark, Esq.

The Supreme Court in DiFiore v. Pezic, endorsed sending third-party observers to attend and record defense medical exams. Advocates for the injured should utilize this critical protective device. For years the insurance industry has gotten away with sending the vulnerable unaccompanied to a cadre of doctors who too  often misrepresent the nature and extent of the injuries. A central way they do this is through the Defense Medical Exam (DME). Sending a vulnerable plaintiff to a DME without the presence of a third-party observer, or at least a video recorder, can be like sending sheep to wolves. 

For years defense doctors have had free reign over our clients and in my experience they would too often misrepresent what happened at the exam.  For example, they will say things like the plaintiff  “complained of pain all over” or otherwise exaggerated. Or they will say they had “full range of motion,” no problems anywhere; a “completely normal exam.” 

When I first started sending nurses to accompany clients, some  defense doctors  would fight to have the nurse removed or try to intimidate them to leave the exam. But over time they learned to accept it. And then a funny thing happened; we would start getting defense reports actually favorable to our client’s case.

For others we would still receive reports doing the same kind of thing, despite the presence of the observer. Many professional defense medical testifiers do hundreds of these exams each year and would never remember the plaintiff at trial. Often the defense medical exams are arranged by exam companies whose clients are the defense attorney or the insurance carrier. Some even suspect that in order to better serve their clients, if the exam company receives a report from the doctor that does not sufficiently attack the plaintiff, they will make “edits” to it before sending it off to the defense attorney.  

On top of all of that, for years the Orwellian acronym “IME” (Independent Medical Exam) somehow made it into the accepted lexicon. There is nothing independent at all about these exams, and never again should any judge or plaintiffs’ attorney refer to them as such. In the first sentence of DiFiore, the Supreme Court properly called them what they are -- DMEs.

When we receive a report that misstates the exam, our preferred trial practice is to have our nurse take the stand right after the defense medical expert as a rebuttal witness. We would then recount what the doctor said happened at the exam, and then ask the nurse if that was true or not. The nurse would directly tell the jury how the doctor falsified what happened. It can be very compelling.

Videotaping the exams may be even better. In a recent trial I had it seemed the defense doctor forgot there was a video. When we pulled it out on cross, she got visibly red and uncomfortable. The video showed her testimony about what happened was not credible. She testified on direct examination that our client exaggerated his pain and limitations at the exam. But the video, combined with other evidence including numerous prior depositions and the defense paying her $1500 an hour, showed who actually had the credibility issues.

           A lot of the defense doctors may have moved to conducting DMEs because they may have grown frustrated  battling with health insurance companies to get their bills paid.. Some probably also see performing DMEs  as a lucrative and tempting alternative to long hours in the hospital or an attractive alternative to full retirement. Whatever it is, for years it has been open season on our clients with no videotape or third-party observer to challenge them. Leaving it at a doctor’s word against your client’s just doesn’t cut it. Having a nurse to observe, take notes and record the defense exam is a common sense and fair measure endorsed by DiFiore.

Gerald H. Clark is the principal attorney at the Clark Law Firm, P.C. with offices in Bergen, Essex,  Monmouth and Ocean counties. He is a former member of the NJAJ Board of Governors and has been certified by the New Jersey Supreme Court as a Certified Civil Trial Attorney. He can be reached at gclark@clarklawnj.com.

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