M.R.Civ.P.35: Physical and Mental Examination of Persons in the Personal Injury Case
Written by Daniel G. Kagan
The independent medical examination, or IME, is a misnomer. Nothing in the Rule 35 requirements implies neutrality or impartiality. Your client is asked to submit to an independent medical examination: what are your options?
Introduction to Personal Injury Cases
You represent a plaintiff in a personal injury case. The liability insurance carrier wants your client to submit to an “independent” medical examination. You are not yet in suit, and your client is not at a medical endpoint. What do you do? Are you required to permit one, and if not, should you? Under what circumstances?
A. The independent medical examination
The so-called “independent” medical examination, often taken for granted in personal injury cases, is commonly misunderstood and sometimes abused. To start, the pervasive expression “independent medical examination,” with its common acronym IME, is a misnomer. Nowhere in M.R. Civ. P. 35 does the word “independent” even appear (for that matter, neither does the word “medical”), and nothing in the Rule’s wording implies neutrality or impartiality. It is a mistake for any lawyer to think of or refer to the Rule 35 examination process, or the Rule 35 examiner, as independent. All plaintiff lawyers should train themselves to avoid the terms “independent” and “IME” so as not to err in front of a jury, and if necessary should remind the presiding justice not to use either of these misleading terms. …/…
B. Rule 35 requirements
Rule 35 requires that a party seeking to have another party examined file a motion showing good cause for the examination. In everyday practice such motions are rare. Absent unusual circumstances, the usual arrangement in personal injury cases is for the defense to notify plaintiff’s counsel informally, by letter or otherwise, of the defense’s wish (or intent) to have a Rule 35 examination. Assuming plaintiff’s counsel does not resist the examination, a formal motion is unnecessary.
C. Informal agreement to a Rule 35 examination or at court’s discretion
This informal practice arises in part from an assumption that resisting the examination is futile and likely to be met with hostility from the bench. This does not mean, however, that plaintiff’s counsel should automatically consent to a Rule 35 examination. Rule 35 allows the court discretion in determining whether to order a requested examination, and to specify the circumstances under which the examination will take place. It is worth making a fight if the Rule 35 examination sought by the opposition is inappropriate, burdensome, or unreasonably inconvenient. If, for example, the plaintiff lives in York County, the defendant faces an uphill battle proposing an examination in Bangor. Unless the proposed examining doctor has something unique to offer, the court can order the defendant to select another doctor closer to home – or pay the doctor to travel closer to the plaintiff to perform the examination. At a minimum, even if an attempt to convince the court not to permit a Rule 35 examination fails, plaintiff’s counsel may be able to at least influence where, when, and under what circumstances the examination takes place. …/…
Defense counsel should be cautious about reaching a casual agreement to a Rule 35 examination. Without advance notice of and consent to the specific testing sought, the plaintiff may appear at the agreed-upon Rule 35 examination and decline to submit to certain tests – because they are too invasive, uncomfortable or for other reasons. If defense counsel intends its Rule 35 examination to encompass more than a record review and a routine external physical examination, the better practice is to identify the tests sought and obtain consent in advance.
Assuming a Rule 35 examination is appropriate, must the plaintiff undergo more than one?
Certainly, the defendant doesn’t get a second Rule 35 examination if the first one is favorable to the plaintiff – it would be a hard to convince the court that two Rule 35 examinations are necessary to address the same injury or condition.
Even if the plaintiff claims multiple, unrelated injuries involving completely disparate medical specialties, the wording of Rule 35 suggests that a party may request only a single examination. …/…
On the other hand, where multiple defendants are involved, there are situations in which each may be entitled to a separate Rule 35 examination. If two defendants are joint tortfeasors causing a common injury, one Rule 35 examination is sufficient since the joint tortfeasor’s enjoy a common defense on damages. But where multiple defendants are sued for separate incidents giving rise to a common injury, because each defendant seeks to shift culpability to the other, each could seek a Rule 35 examination to support its position that the other defendant’s responsibility is greater.
D. Timing of a Rule 35 examination
Should plaintiff’s counsel agree to a pre-suit Rule 35 examination? In third-party claims, plaintiff’s counsel should be very cautious in agreeing to a Rule 35-type examination pre-suit. No Rule 35-type examination should take place until a claimant has reached a medical endpoint. To allow the insurance company to interject its doctor into a plaintiff’s ongoing medical care is invariably a mistake.
Generally speaking, once a medical endpoint is reached, the case should either be settled or sued, and the delay of a Rule 35-type examination is unwarranted. In first-party claims, there may be no choice. Policies for medical payment and uninsured/underinsured motorist coverage often require the claimant to undergo an “independent” medical examination, and a claimant’s refusal invites a denial of coverage.
E. Pre-suit examination
Yet there are personal injury examination cases and situations in which a pre-suit Rule 35-type examination may be desirable to the plaintiff.
If the plaintiff is unable or refuses to go to trial, a Rule 35-type examination can spur a pre-suit settlement.
If there is insufficient coverage to pay a likely favorable verdict, consenting pre-suit to an examination to confirm the obvious may yield settlement for the policy limits.
Of course, these scenarios assume a strong plaintiff’s claim – with weak cases, it is best to keep the insurer away and in the dark as much as possible, for as long as possible.
Regardless of the reason for consenting to a pre-suit examination, plaintiff’s counsel must insist upon strict limitations. Besides the more obvious details concerning the time, place and nature of the examination, plaintiff’s counsel should obtain confirmation, in writing, that the pre-suit examination is to be the only Rule 35 examination in the case. …/…
The last thing a plaintiff wants is to give the defense two bites at the Rule 35 apple by having both a pre-suit and post-suit examination. The language should be explicit in confirming that plaintiff is agreeing to the pre-suit examination in a good faith effort to settle the case, with the express understanding that the pre-suit examination is to be the only Rule 35 examination sought by the defense in the case. Further, the agreement should confirm that the defense will not seek a second Rule 35 examination if the case does not settle and plaintiff files suit.
If there are multiple defendants, plaintiff’s counsel should obtain this confirmation from all before submitting to the examination.
Plaintiff’s counsel should also insist upon input into the selection of the examiner. Agreeing to a pre-suit examination is, after all, a concession, made in a good faith effort to settle. If the insurer’s interest in a pre-suit examination is similarly in good faith, then the pre-suit examiner will not be picked from the “A” list of defense-oriented professional witnesses. If the insurer insists that a known defense-oriented professional witness conduct the examination, hang up the telephone and file suit – the insurer is only interested in building a case for trial and not in settling the case.
Another important condition of permitting a pre-suit examination should be that plaintiff’s counsel receive a written report of the examining doctor’s findings. Because it is common practice for defense counsel to provide a doctor’s report to plaintiff’s counsel following a Rule 35 examination, this requirement pre-suit may be overlooked. …/…
Rule 35, however, does not require that a written report be provided unless the examined party asks for one. Upon request, the examining party must provide a report of the examiner’s findings, including results of all tests made, diagnoses and conclusions. A lawyer agreeing to a pre-suit examination should insist upon no less.
If the parties agree on a pre-suit examiner, plaintiff’s counsel has to consider whether to submit records and information directly to the selected examiner. If the selected examiner is one who is likely to see the case favorably to plaintiff if presented with all the facts and records, plaintiff’s counsel may want to submit these directly to the doctor with an appropriately worded cover letter. In doing so, however, plaintiff’s counsel risks losing much of the adversarial nature of the examination – and with it, fertile ground for cross-examination if the report is unfavorable and trial becomes necessary.
F. Alternatives to a Rule 35 examination
As for plaintiff’s counsel submitting the client to a “plaintiff’s independent medical examination,” as a general rule this should be avoided. In personal injury cases the plaintiff has the advantage in the battle of experts. Unlike the defense Rule 35 examiner, who sees the plaintiff one time, usually years after the precipitating event, and at the defense’s request and expense, plaintiff’s doctors usually have the benefit of multiple patient visits, contemporaneous with the injury and treatment, to provide care and treatment rather than trial testimony. A “plaintiff’s medical examination” risks losing this advantage by endorsing the notion that an arm’s length examiner is a more reliable indicator of a patient’s post-traumatic condition than the plaintiff’s own treating doctors. Of course, such an examination can also backfire, resulting in an opinion favorable to the defense. …/…
Rather than enlisting a “plaintiff’s IME,” the better course is for plaintiff to employ the treating doctors as experts and, if another opinion or additional testimony is necessary, orchestrate a referral by the plaintiff’s treating doctor to the specialist whose involvement plaintiff seeks. If for some reason a plaintiff’s medical examination is deemed indispensable, counsel should consider waiting until after the Rule 35 defense examination report has issued so that the plaintiff’s examiner can address and comment upon its conclusions. Plaintiff’s counsel should provide the chosen examiner with no fewer records and materials (and preferably more) than was provided to and relied upon by the defense examiner.
G. Who can be examined under a Rule 35 examination?
This discussion has addressed primarily the Rule 35 examination requested by the defense. This is of course the most common application of Rule 35.
As written, however, Rule 35 permits any party to seek another party or person’s examination.
There are occasions in which an examination of the defendant are appropriate. For example, a defendant may claim that a sudden, unforeseen medical emergency impaired his or her actions.
A Rule 35 examination of the defendant, coupled with the examiner’s review of the defendant’s medical records, would be an appropriate basis upon which to challenge the sudden medical emergency defense. The defendant’s capacity to perform certain tasks relevant to liability, or to understand and relate pertinent facts, would also be appropriate bases upon which to seek a Rule 35 examination.
Rule 35 gives the defendant a voice from the witness box for its theory of defense. For plaintiff, the Rule 35 examination presents cross-examination challenges and possibilities that ought not be squandered. For this reason care should be given in deciding whether, when and how to permit a Rule 35 examination.