How to Prepare for Your Defense Medical Examination
ROY L. COMER
YOUR LAWYER’S RESPONSE
Your lawyer has probably sent a formal response to the defendant’s demand and California law governs the examination. You are required to cooperate in the examination, but you have certain rights, also. You will not be financially responsible for this exam; the defendant’s insurance company is paying for it.
THE DEFENSE DOCTOR’S ROLE
The doctor is not there to help you; the doctor is there to help the other side. Questions will be posed to minimize your injuries. The doctor is being asked to render an opinion concerning your injuries, and the insurance company is expecting the doctor to give the opinion that you were not hurt to the extent you claim, or in the manner you claim. The doctor is well-trained to do this job, and you cannot risk any effort to try to fool this doctor. Your case could be lost or seriously undermined if you exaggerate or try to pull something over on the doctor. Therefore, you must tell the truth.
WHAT THE DOCTOR ALREADY KNOWS
Try to remember each of the injuries or complaints from which you suffered in the past, if any. The defense interests will obtain records of all of your past injuries. If they are similar to those received in this incident, call your attorney and discuss these injuries before the examination.
WHAT TO AVOID
There are certain anatomic consistencies in all of us. These are well-known to the doctor, and if you report a certain kind of pain that is anatomically impossible, you will be called a faker or a liar. The doctor may do certain tests of your arms and legs, to determine if you can feel the sensations of pin pricks or light touch. It is common for people to exaggerate their responses in an effort to convince the doctor they are really injured. You should refrain from this impulse. Therefore, be very certain of your answers before you begin to respond.
HOW TO APPROACH THE EXAM
Think through all of your problems and complaints related to the incident that caused your injury, as well as complaints that existed before your injury. We would suggest that you make a list of every area. Our clients have found it frequently helpful to simply start at the top of your body and work down. Study the list until you will not forget any part of it. However, do not bring the list with you to the doctor’s office.
HOW TO ANSWER
Do not minimize any problem, but do not overemphasize the trivial problems, either. Many a case has been lost due to exaggeration. You have probably learned to live with much of your pain. Think about what it was like prior to this incident and the changes that have occurred since. It is likely that your injuries have diminished because of the treatment you have received, as well as the passage of time, so keep this in mind.
REMEMBER WHY YOU’RE THERE
Remember that the defendant’s insurance company has hired this doctor to examine you. If your case is not settled, this doctor will be testifying against you. Therefore, be polite and cooperative. You have been scheduled to see one specific doctor for one specific examination. Do not consent to another doctor. Be aware that you are being watched at all times. The doctor, or the office staff, will watch how you get out of your car, how you walk into the office, how you get onto and off of the examination table, what kind of shoes you are wearing, how you sit, how you open the door, how you move your head, etc.
REMEMBER HOW TO ANSWER
You will be asked questions about how the incident happened, how you were injured, whether you had any similar injuries before this one or after this one, and what your current complaints are. Answer only the questions the doctor or the assistant asks. Do not volunteer information. The doctor is not there to help you, so if you are asked questions that are “unfair” and you respond to them, or if you provide additional information that was not asked for, it will only hurt you later.
When asked to do so, give only the facts relating to the forces of impact and your body motion during and after the event by telling the doctor what happened. Do not try to recreate the event for the doctor through movements of your body, etc.
DON’T LET THEM BULLY YOU
Do not allow the doctor to tape record the examination unless your lawyer has arranged for an observer to be present with you. This observer will record the examination. The observer is a person, usually a chiropractor or a nurse, trained to observe and report on the thoroughness of the exam. If the observer tape records the examination, the doctor can do so, too.
Do not fill out or sign any forms. Any information the doctor needs will come by your answers to interrogatories, your statement or deposition. In addition, the defense attorney may give the doctor some information. You will be required to give your full name, date of birth, current home address, your driver’s license number and Social Security number. Do not give your phone number, medical insurance information or employment history.
STAY ON TOPIC
The doctor will have reviewed your medical records. These records will contain things you may have forgotten. However, you will want to be as truthful as possible, of course. Therefore, answer any questions simply and truthfully. If you do not recall something, say so. However, do not rely on a “convenient lack of memory” in an effort to correct something later. Something as traumatic as a prior injury that caused you to see another doctor is not something that you should easily forget. Additionally, problems with the same part of your body that was injured in this incident should be recalled for the defense medical examiner.
Tell the doctor when you are experiencing pain on any movement, even if you are not asked. The doctor may not ask you about your pain on movement.
As you go through the examination, the doctor will ask you to move your head, arms, etc. Move only until you experience pain and then tell the doctor you can’t go any further without pain.
ABOVE ALL, BE TRUTHFUL
Do not generalize. Specify exactly where you are experiencing pain or discomfort. For instance, do not simply say “my leg hurts,” but give more details, such as “the lower inside of my calf hurts.” Be prepared to describe the pain. Words such as “shooting,” “knife-like” or “burning” are frequently accurate descriptions of the pain.
One cannot emphasize strongly enough your lawyer’s desire for you to be truthful. The doctor will try to distract you by talking, etc., while doing the tests so you forget to express your pain. This is a technique to determine if you are faking or exaggerating your pain. If you are caught trying to exaggerate on this, your case will be worth considerably less than if you had simply told the truth and not tried to convince the doctor of your injuries by stretching things a little bit.
ASK TWO QUESTIONS
At what appears to be the conclusion of the exam, and while the tape recorder is still going, ask the doctor two questions: One, “Doctor, what is wrong with me?” and Two, “Doctor, what can be done to help me?” This is very important to your case, so we hope you will remember to ask these questions at the appropriate time.
TELL YOUR LAWYER HOW IT WENT
Finally, before you forget this unpleasant experience, take a few moments and write down what happened. Tell it in your own words in diary form, starting with the time you left to go to the doctor, how long you waited, what the doctor did or said, how long the visit lasted, etc. Here are some other things to think about:
- Did the doctor do anything that hurt you during the exam?
- Did the doctor say anything that offended you or struck you as “funny” or inappropriate?
- Did the doctor say what was wrong with you?
- Did the doctor say you needed more treatment?
- Did you hurt after the exam?
Send your lawyer a copy of your “diary” of the day. They will be able to ask you questions about this exam if the matter goes to trial or arbitration, and your diary will be a good refresher as to what you went through.
