EDITORIAL: State Bar Video Unfairly Vilifies the Medical Examination Process.

WDC Journal Edition: Spring 2011
By: Patricia J. Epstein and George E. McCue, Bell, Moore & Richter, S.C.

[Authors’ note: We have raised the issue that is the subject of this article with the State Bar of Wisconsin. The State Bar refused to publish our original article submission in Wisconsin Lawyer. However, the Bar did agree to publish a chopped version of the writing as a letter to the editor in Wisconsin Lawyer. The State Bar also told us they would draft a response, which we assumed would come directly from the State Bar. However, the response that followed our “letter,” which we did not have the opportunity to see until after publication, came from plaintiff attorneys Mike Riley and Michael Walsh.]

Medical examinations for the purpose of litigation, conducted by a doctor other than the patient’s treating physician, have long been a contentious issue. Because these medical professionals are most often hired by defendants, plaintiff’s lawyers pounce on the opportunity to paint them as “hired guns” who care only about getting paid by defendants/insurance companies and hence “guarantee” a favorable outcome for the defense. The legal community cannot even agree on a name for the process. Traditionally known as “independent medical examinations,” the plaintiff’s bar sometimes refers to them as “insurance company exams” or “compulsory medical exams.” (Although they are no more “compulsory” than interrogatories or any other form of discovery.) These examinations are critical to the defense of the case because defense counsel are generally not permitted to 1) speak informally with a plaintiff’s treating physician; 2) send treating physicians complete medical records, depositions, or other discovery; or 3) retain them as independent experts.

While perhaps a few physicians are deserving of this disdain by the plaintiff’s bar, we all are aware of numerous instances where a physician provides an honest opinion that is not particularly favorable to the defense position. We want, ask for, and expect an honest opinion.

Unfortunately, the State Bar of Wisconsin has taken an obvious and completely inappropriate side on this issue in its release of a new edition of its video “Preparing for Your Compulsory Medical Exam.”

Most of the State Bar’s video series appear to be informative tools for lawyers and clients, with topics ranging from hiring experts to preparing for depositions. Another recent video titled “Preparing for Your Personal Injury Case” is more of a detached primer on civil procedure than a source for plaintiff-oriented strategy. “Preparing for Your Compulsory Medical Exam,” on the other hand, clearly takes the plaintiff’s side and insinuates that medical examiners are the enemy.

If this video were produced and distributed by a plaintiffs’ association, there would be no problem. But the State Bar is an integrated bar created by the Wisconsin Supreme Court and directed in its mission statement to serve the interests of its members.[1] The Bar performs a disservice to its defense attorney membership, and the public in general, when it puts out materials that foster distrust of both the defense position and a legally-sanctioned process.[2] Even if the Bar is not purposely taking a side in this debate, the appearance of improper side-taking is enough to make these materials run afoul of the State Bar’s mission statement.

The video first came to our attention when we received an e-mail from the State Bar advertising the video titled, “Help your clients ace medical exams.” That title alone is offensive, not to mention a mischaracterization. Clients undergoing an examination should cooperate and be honest with the medical professional examining them. The point is not to “ace” anything. The only “right” answers are honest ones.

Both the video and brochure state that independent medical examination (IME) doctors are chosen and paid by the defense.[3] Fair enough—we are not disputing anyone’s right to know who is paying the doctor’s bill. (Although, many times, the plaintiff’s own attorney sends him or her to such an examination.) Our complaint lies with the blatant editorialization of the process.

The brochure continues by saying that IME doctors “overwhelmingly say the injured person’s injuries are not as serious as the person claims.”[4] No actual statistics or cited authorities are given. Quoting the brochure: “Typically, these [IME] reports minimize the extent of the person’s injuries, dispute the seriousness and/or long term effects of the injuries, and usually dispute the extent of pain, disability and need for future treatment as well.”[5] The author then admits that sometimes IME doctors submit a report to insurance companies that supports the claim, but writes off such outcomes as “increasingly rare.”[6]

The State Bar’s materials raise suspicion toward IME doctors who take the same Hippocratic Oath as the claimant’s own primary physician. The video warns the viewer that IME doctors are not “ordinary” doctors, and “not even neutral doctors.”[7] The terms “ordinary” and “neutral” are interesting choices of words. If IME doctors are not “ordinary” and “neutral,” it would logically follow that treating physicians must be those things. However, that viewpoint ignores one of the rationales for IMEs in the first place: Treating physicians, who often have long-term and often personal relationships with their patients, are clearly susceptible to bias (or the appearance of bias) in favor of their patients. We call those physicians “patient advocates” and oftentimes such treaters go out on a limb for their patients. That is why the law allows for what is considered a “tie-breaker examination” conducted by a truly “neutral” tribunal-appointed practitioner.[8]

The materials are replete with inferences that IME doctors cannot be trusted to objectively examine and report. When the materials remind the audience that “the doctor is hired by the defense to help its case,”[9] they fail to add that the IME physicians (and attorneys) are bound by professional ethical rules. One goal of a medical examination conducted by a party is to assess and find evidence that may help its case, but not through unethical means. IMEs are not undertaken for the purpose of inventing examination results which help that party’s case.

The materials offensively portray IME doctors as dishonorable and contemptible. In the video, the narration informs the viewer that IME doctors are “paid well”—they make more money from insurance company work than from individual patients—and “want to keep the insurance company happy.”[10]Before showing an acted-out examination, the narrator tells the viewer to note the demeanor of the doctor, and intones, “be prepared for anything here!”[11] The video warns that the doctor may suggest that he or she was hired by the claimant’s attorney[12] (the video does not mention that such conduct would be dishonest, unethical, and not condoned by defense attorneys). Yet the video later suggests that the claimant consider being sneaky. When talking about the prospect of audio-recording an examination, the narrator ponders: “Should you secretly record the examination? Check with your attorney!”[13]

The video dedicates considerable time to coach the viewer about how to describe his or her pain. The video encourages claimants to describe their pain on “good days” and “bad days,” and to evade physician’s questions about what happens on “typical days.”[14] While that may be appropriate advice by the plaintiff’s attorney, it is certainly inappropriate coming from the supposedly neutral voice of the State Bar.

The materials surmise that the audience has a valid claim, which is an improper assumption to make. When discussing pain, the brochure ends the section with a bit of inappropriate cheerleading: “You deserve to have it recognized and to be compensated for it.”[15] This assumes that the there is a valid claim, a compensable injury occurred, and a fair determination must and will recognize it. However, all of those assertions are dependent on the facts and circumstances of individual cases. What if the reader actually has a frivolous or exaggerated claim, or is considering one? The materials make assertions that should only be given by an informed attorney who has assessed the claimant’s specific case, and only when warranted.

The brochure contains a quiz of “exercises” to review the lessons of the materials. The “exercises” include questions, true/false statements and multiple choice “complete the statement” problems. In many respects this quiz is the most troubling part of the materials. For one, there is no answer key for the true/false and multiple choice exercises. This is especially egregious considering the fact that many of those exercises contain outrageous suggestions such as “be sure to moan a bit whenever you move,” “exaggerate,” and “remember that doctor knows best.”[16] What if a quiz-taker fails to understand that some of these answers are supposed to be “jokes,” or walks away with incorrect information from an incorrect answer?

Taken together, the inappropriate side-taking, pejorative comments and misplaced advice lead us to believe this video should have never been released by our State Bar, and should be promptly removed. Informing clients about legal procedure is fine. But leave it to the individual plaintiff’s attorney to come up with his or her own strategy, advice, and opinions about IMEs.

[1] Supreme Court Rules §§ 10.01, 10.02(2).

[2] Independent medical examinations (furnished by either plaintiffs or defendants) are recognized with regard to physical and mental examinations in the Wisconsin Rules of Civil Procedure. See Wis. Stat. § 804.10(1). The process is laid out with even more detail in the Worker’s Compensation statutes. Wis. Stat. § 102.13.

[3] DVD, Preparing for Your Compulsory Medical Exam (State Bar of Wisconsin Law Office Videos 2010).

[4] Accompanying Brochure, Preparing for Your Compulsory Medical Exam, at 4 (State Bar of Wisconsin Law Office Videos 2010).

[5] Id.

[6] Id.

[7] DVD, supra note 3.

[8] Wis. Stat. § 102.13; see also John D. Neal & Joseph Danas, Jr., Worker’s Compensation Handbook(6th ed. 2009).

[9] Accompanying Brochure, supra note 4, at 7.

[10] DVD, supra note 3.

[11] Id.


[13] Id.

[14] Id.

[15] Id.

[16] Accompanying Brochure, supra note 4, at 10.