- posted: Sep. 13, 2017
You’ve been injured in a car crash that wasn’t your fault. You’ve obtained legal representation and your lawyer has filed a lawsuit against the person or people responsible (the Defendants) for the crash and your injuries. The Defendants are represented by their auto insurance company, and the insurance company seems to be fighting you on everything.
The insurance company’s latest maneuver is to file with the Court a Motion for an IME, or Independent Medical Examination. An IME is where a physician, who has not treated you for the injuries you sustained in the crash, examines you to determine the extent of your injuries, to report on whether your treatment has been reasonable and necessary for the injuries you have received, and to provide his opinion as to the degree of your permanent impairment, if any. During the examination, this physician may ask you questions about how the crash happened, in order to understand your symptoms and injuries, and about your treatment. The purpose of an IME is often to dispute the diagnosis or treatment of your own treating doctors.
The IME physician is paid by the insurance company. The IME doctor’s report can become evidence at a mediation or arbitration, or at trial. The IME doctor can testify at trial.
Rule 35 of the Massachusetts Rules of Civil Procedure provides for IMEs “[w]hen the mental or physical condition (including the blood group) of a party … is in controversy.” MRCP Rule 35(a). As a party, you do not have to agree to an IME, however, if you do not consent, the insurance company may ask the Court to order you to “submit to a physical or mental examination.” MRCP Rule 35(a). The Defendant’s Rule 35 Motion must specify the time and place of the examination, as well as the conditions and scope of the examination (including which tests are to be performed) and the name of the physician or specialist who will be conducting the examination. MRCP Rule 25(a).
The Defendant has the burden of proving, to the Court’s satisfaction, that there is “good cause,” or good reason, for subjecting you to the IME. If you and your attorney believe that there is not good cause for the IME, your attorney should oppose the Defendant’s IME Motion. In addition, there may be valid grounds to oppose the Motion if the Defendant’s Motion does not comply with the specific requirements of Rule 35, such as specifying the scope of the examination and stating the name of the doctor who will be conducting the examination.
Other grounds for opposing an IME include timeliness. If the Defendant has waited until after the discovery period has closed, or several years have passed since the crash or since you have finished treating for your injuries, your attorney should bring this to the Court’s attention. The Court may deny the Defendant’s IME Motion if it finds that the Defendant took too long to bring the IME Motion.
If you and your attorney decide not to object to the Defendant’s IME Motion, or you object but the Court orders that you undergo the IME, you may wish your attorney to be present at the IME. MRCP Rule 35 does not state one way or the other whether a party’s attorney is allowed to be present at the IME. Your attorney must ask the Court for permission to attend, and the Court will decide this issue.
At least one Massachusetts Court has held that there must be “good cause” for a party’s attorney to attend the IME. In this instance, good cause means that a Court considers whether there are any external factors which suggest the likelihood of a biased or adversarial exam, as well as the nature of the examination itself. If your attorney is allowed to attend the IME, he or she cannot participate in the IME in any way, absent any improper conduct or questioning on the part of the IME physician. Kutner v. Urban, 2003 Mass. Super. LEXIS 406 (Middlesex Super. Ct. Nov. 24, 2003) (Brassard, J.). Whether or not your attorney will attend the IME, he or she can prepare you in advance for what you might expect.
The attorneys here at Studley Law Offices have a combined 45 years of experience representing people who have been injured in car crashes. We understand what you’re going through and we know how insurance companies work. We have successfully opposed Defendants’ requests for Rule 35 IMEs. If you have been injured in a car crash and would like to speak with us, please call Christine at 508-946-0070.
