In today’s video, Attorney Ben Schwartz answers the question, “what can I do if the doctor lied in my Defense Medical Exam?”

Hi, I’m Attorney Ben Schwartz.

Today we are continuing our video series on IME’s and DME’s. If you watched the previous videos in the series you know that IME stands for an independent medical exam and DME stands for defense medical exam. They are essentially the same thing and they are an exam and a report by a doctor hired and paid for by the insurance company in a personal injury case. Today we are going to answer the question, “what do I do if the doctor lied in my defense medical exam?”

This is a common scenario that we see where we have clients in personal injury cases, car accident cases, slip and fall cases and workers’ compensation cases that go for a defense medical exam. They report back to us that the doctor came into the exam room at 12:05, the doctor did a 4-minute examination and left the exam room at 12:09. When we get in contact with the insurance company and we actually see the doctor’s report, the doctor reports things like I spent 30 minutes examining the patient. These discrepancies are very common.

In another example our client will report to us, I explained to the doctor that before the accident I was having back pain. I was seeing my family doctor once a year for mild back pain over the course of five or six years. I got in the accident and now I have terrible back pain and numbness down the back of my leg and a full-blown herniated disc in my lumbar spine. When we get the report from the insurance company that paid for the doctor, the doctor says things like, “the plaintiff never reported to me any prior symptoms of back pain,” which can be very important in a case. It comes down to whether the plaintiff or the claimant is telling the truth about his or her injuries.

We see these discrepancies between what our clients report to us happened or was said in the exam versus what the doctors put in the report. I am not trying to besmirch the reputation of all doctors that do defense medical exams but some doctors are frequent flyer as we see them all the time. The insurance companies use them over and over and over. The doctors, in their depositions, admitted to us that they make millions of dollars off of doing these insurance company examinations. Some of them will say essentially they look for ways to help the insurance companies because the insurance companies are paying them millions of dollars.
The question is, “what can I do if the doctor lied in the defense medical exam or in the independent medical exam?” Essentially what you need to know is, that it is up to your attorney to cross-examine the doctor to expose those discrepancies. The unfortunate thing is that if it is a Delaware case, and many of our personal injury cases are Delaware cases, you cannot sue the doctor for lying in the defense medical examination or an independent medical examination.

There was a case that came up in 2016 it was a case called Adams versus Gelman. Dr. Gelman, who is an orthopedist in Newark, Delaware, was sued by a group of people who he had done defense medical exams on. The Superior Court issued a decision saying that Dr. Gelman had absolute immunity as a witness in a legal case. The Superior Court has immunized defense medical examiner’s from any sort of legal liability for lying, stating falsities, or stating untruths in their testimony that is made in connection with personal injury cases. It is very unfortunate, that the case went up on appeal to the Delaware Supreme Court and the Delaware Supreme Court affirmed but affirmed on other grounds. The Delaware Supreme Court did not say anything in its decision to contradict what the Delaware Superior Court did and so tacitly the Delaware Supreme Court has given the wink and the nod to lying defense medical examiner’s to proceed in that fashion.

You may not be able to sue a defense medical examiner for lying but if you have a situation where you have been injured in an accident and the insurance company sends you for a defense medical examiner and he/she lies about what you told them about what happened in the examination room, you might want to consider contacting the Delaware Board of Medical Licensure and Discipline. If it is another state, every state has a board of Medical Practice or a Board of Medical Licensure, you can file a complaint. I think that in just about every state in the United States lying, prevaricating, is going to be an ethical violation for a licensed physician. So if you have that situation it may be something you want to look into. I am sure that the licensing authorities would want to know if they have licensed a physician who is going around taking millions of dollars from insurance companies to lie about people with legitimate personal injury claims.

So essentially the answer to the question is, “what can you do about it?” Well, that is why we have cross-examination and a skilled cross-examiner should be able, in most cases, to examine the discrepancies in the testimony. If you really have a case where you feel that the doctor has committed a Physician’s ethics violation then you should consider going to their board and filing the complaint. I am Attorney Ben Schwartz, if you have questions about physicians IME’s or DME’s in the context of personal injury cases send me an e-mail. We are going to keep doing videos in the series so keep watching. Make yourself educated about this process so that if you are in a personal injury case. God forbid in the future, you, a friend or family member gets injured in an accident and have to deal with this IME or DME process you will be educated about it. You will be knowledgeable about it, you won’t have to fear it and you will understand what is going on in your case.

Thanks for watching!