On May 9th, Attorney Matthew Crosby went before the Pennsylvania Supreme Court to argue in favor of a plaintiff’s right to counsel during independent medical exams, or IMEs. Specifically, our attorney argued that plaintiffs should be allowed to have counsel present for independent psychological exams. The core of the argument was that plaintiffs need protection during the examination process—especially as IMEs are used as evidence against plaintiffs in many injury cases.
What Is an IME?
For some basic background information, an IME is a medical examination from a doctor with no prior relationship with the patient. An IME is requested by the insurance company during the claims process to validate the claimant’s injuries (or to provide counter-testimony, if the patient has sought medical care outside of the insurance company’s recommended doctors).
The IME is carried out by a doctor of the insurance company’s choosing—often someone who depends on the insurance company’s referrals and is paid by the insurance company. As a result, there’s a demonstrable incentive to minimize the injuries found during the examination.
In this case, our client suffered a brain injury that left her with poor memory. As Mr. Crosby pointed out in his remarks, the situation dictates that only the psychologist (chosen by the defendant) will be able to provide testimony about what was done and what was said during the exam. We argue that is sufficient reason to have an attorney present, acting as an advocate for the patient and providing a second source of observation.
Defense Argues Against Having an Advocate Present
Last year, the defendants filed a motion for a protective order barring our attorneys from observing the psychological exam. The Lebanon County Court of Common Pleas granted the protective order, which was later affirmed by the Superior Court of Pennsylvania, who said that plaintiffs do not have the “absolute right” to counsel during examinations. The defense cited the psychologist’s professional opinion that having an attorney present would disrupt the data gathered from the exam.
However, Mr. Crosby argued the following points against the premise of the protective order:
- Attorneys are necessary to act as a “check on the system”
- Attorneys would only observe, not interfere or object
- Attorneys would provide accountability for a psychologist’s testimony
- Attorneys could still be barred from exams on a case-by-case basis
During the Supreme Court arguments, the defense argued that the protective order was “narrowly tailored” and was filed to ensure fairness, as defense counsel was not present during medical exams either. However, Justice David Wecht questioned where such a protective order might lead. He asked if the court’s decision to uphold the protective order might allow all doctors to ban lawyers from independent medical exams.
In situations involving the rights of everyday people to shield themselves from insurance company practices, our attorneys will always fight on the front lines to protect the injured.
Read the story as reported by the Legal Intelligencer here.