IME-1If you seek to recover for a personal injury, expect an insurer, be it a PIP (Personal Injury Protection) carrier for a motor vehicle-related injury, or a liability insurance carrier for an injury caused by a slip and fall or medical negligence, to ask you to undergo an Independent Medical Examination (IME).

Plaintiffs’ attorneys derisively refer to IMEs as Insurance Manipulation Exams because, too often, carriers employ them to lessen damages and compromise settlement of claims. Still, PIP carriers, under M.G.L. c. 90, §34M, can require injured persons to submit to an IME by a physician of the carrier’s choosing and assist the provider in obtaining medical reports and other information that would enable the carrier to determine the amount due the injured person.

A federal appellate court in Vanhaaran v. State Farm Mutual Auto Ins. Co., 989 F.2d 1, 6 (1st Cir. 1993) said an IME clause in an auto insurance policy is a condition precedent that imposes a duty of performance on the insured. Willful and unexcused refusal by an injured party to cooperate with a carrier by refusing to submit to an IME allows the provider to deny coverage under the policy and is an exception to the general rule of M.G.L. c. 90, §34M that requires an insurance carrier to prove it was prejudiced by the insured’s failure to satisfy his or her obligation under the policy before it can deny coverage. See Brito v. Liberty Mut. Ins. Co., 44 Mass. App. Ct. 34, 37 (1997).

That doesn’t mean the injured person should passively enter the office of the IME physician with an air of resignation. Rather, he or she should pay close attention to the accuracy of the information known to the examining physician, the length of the physical exam, the doctor’s manner toward the injured party, and take solace in the knowledge that his/her counsel has carefully vetted the IME physician’s professional qualifications.

An injured person undergoing an IME should not hesitate to take notes during the examination. In Wang v. Liberty Mut. Ins. Co., an injured person sought to tape record his IME, but the IME physician refused the request and ended the exam. The carrier stopped paying PIP benefits because it alleged the plaintiff didn’t cooperate with the IME, but the court sided with the injured person, ruling that his request was reasonable.  The injured person is best-served if accompanied by someone to witness the IME, be it a friend, relative, or a paralegal or attorney representing the injured person.

It’s a different ballgame where a liability insurance provider wants the injured person to submit to an IME because of the carrier’s question about the permanence of the disability or doubts about the prolonged care given the nature of the injury. There is no contractual or statutory requirement for the individual to undergo the IME as there is in automobile-related injuries. Though the carrier can dictate the specialty of the physician performing the IME, it cannot require the injured person to see a particular doctor. Expect the attorneys on both sides to review the names and qualifications from a list of three or four physicians to find a mutually agreeable doctor to perform the IME.

Under Rule 35 of the Massachusetts Rules of Civil Procedure, if a person’s mental or physical condition is in controversy, a judge, on motion for good cause from a party, may order an IME. Such an order spells out who will perform the IME, when and where it will be done and its scope.  The injured person’s attorney will receive a copy of the IME physician’s written report of the examination.  Usually, the insurance carrier will provide the IME physician with the necessary medical records as background.

The injured person undergoing an IME should remember that he/she is not speaking to his/her personal physician. Don’t be misled by the “I” and “Me”—the exam is being done for them (the insurance provider). Our office stands ready to protect your interests and help you to attain a fair settlement if you’ve been injured.