Written by JH Revere, Esq.
Edited by Bill Pfund, Esq.
If you have worked in bodily injury claims for any period of time, you are no doubt aware there are two primary means by which the defense attempts to rebut a plaintiff’s medical claims prior to or at trial. They are, of course, the Independent Medical Examination (IME) and the Peer Review.
Let’s start by looking at the framework for expert testimony in Virginia. Virginia Code § 8.01-401.1 addresses expert testimony at trial. It states in part:
In any civil action, any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
The statute clearly applies to both the peer review and the independent medical exam. The independent medical exam is further subject to additional criteria. Rule 4:10 of the Rules of the Supreme Court of Virginia states in part:
(a) Order for Examination. –When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending, upon motion of an adverse party, may order the party to submit to a physical or mental examination by one or more health care providers[.]
. . .
(c) Report of Examiner.
(1) A written report of the examination shall be made by the examiner to the court and filed with the clerk thereof before the trial and a copy furnished to each party. . . .
(2) The written report of the examination so filed with the clerk may be read into evidence if offered by the party who submitted to the examination. . . .
So the primary differences between a Court Ordered medical exam and peer review are as follows: 1) the medical exam includes a physical examination, 2) the medical exam requires a report be filed by the examiner, 3) that report can be read into evidence by the opposing party [plaintiff], even if the examiner is not produced at trial or otherwise deposed.
So what are the pros and cons to each method of obtaining expert testimony? First the peer review.
As an initial starting point, the peer review is cheaper than the medical examination, as there is no requirement of a physical or mental examination or testing. The peer review is much safer than a medical examination as there is no requirement of filing a report with the Court or opposing side. An unfavorable peer review does not need to be disclosed and the witness need not be called or even identified. This is often referred to as “wood shedding” the witness.
On the negative side, the peer review lacks a certain gravitas that a medical exam pursuant to Court Order carries. While a peer review can address issues such as maximum medical improvement, residual impairment and malingering, the medical exam per Court Order will typically carry much greater weight as your expert will have seen and to some extent handled the merchandise (plaintiff) verses simply reading about them in medical records and testimony.
Though we on the defense side tend to call a medical examination pursuant to Rule 4:10 (Rules of the Supreme Court of Virginia) an Independent Medical Exam or IME for short, nowhere in the body of the Rule does the word “independent” appear. In fact, the plaintiff’s bar regularly goes off on campaigns to label the exam as a Defense Medical Exam or DME. It is routine for plaintiff’s lawyers to markup Orders and attempt to insert language in Orders that defense counsel won’t call the examiner independent or will call the exam a Defense Medical Exam. The Circuit Courts of Virginia seem distinctly uninterested in what the lawyers want to call the exam, and often cases are tried with the plaintiff’s lawyer referring to a defense exam while defense counsel calls it an independent exam.
While the full blown Rule 4:10 exam is more expensive, it does carry more weight with a jury at trial. In cases where the plaintiff’s current condition or mental state is an issue, the examination can be an invaluable tool not just for what it reveals to the examiner, but to convey to the jury the seriousness of the issue and the investigation undertaken by the defense to get to the truth.
The two negatives to the Rule 4:10 exam should be obvious at this point, cost and risk. They cost more than a peer review (usually about double because of the exam and the report), and they carry a risk not present with a peer review. Every defense lawyer has had a case “go south” on them, when a Rule 4:10 doctor wrote an unexpected report and gave opinions that helped the opposition. It is a real risk in every such exam.
So, when is it best to obtain a peer review verses a Rule 4:10 exam or the reverse? The peer review works best when costs are an issue, there is no question about plaintiff’s current condition, and/or there is concern that the Rule 4:10 exam might produce an unfavorable report (having counsel who can evaluate medical issues and probabilities is essential on this front).
The Rule 4:10 exam is invaluable in cases where the current condition of a plaintiff is an issue. Any claims of ongoing or permanent impairment should get serious consideration for a full blown examination. Further, if the case is large enough and the alleged injuries severe enough, consideration of a Rule 4:10 exam is advisable. Juries have expectations that serious injury claims will be given serious treatment and a court ordered examination meets those expectations better than a peer review expert who will not have met or examined the patient/plaintiff. In the really large cases with questionable medical causation issues, both a peer review and a Rule 4:10 exam can be used. The peer review is used to predict the outcome of the examination. Different experts should be used in this case to avoid and appearance of impropriety.
Last, do not underestimate the utility of deposing the plaintiff’s treating physicians on the issue of causation as a way of eliminating the need for expert review of your own.
Hopefully, this article can serve as a starting point for anyone debating the question of obtaining a peer review or Independent Medical Examination here in the Commonwealth of Virginia. Anyone with additional questions is encouraged to contact KPM directly.