The case is going to go to arbitration, the deposition has been taken.
Now the insurance co defense attorney wants to make the claimant(injured party) to undergo a 3 hour medical examination by a doctor that the insurance company hired.
1) Is this "normal" procedure for insurance co to do? If yes, what % of plaintiffs are subjected to medical exam?
2) What happens if plaintiff refuses to accept a medical exam? Or is there any cases where basis exists to ask the judge to not grant a medical exam to the insurance co?
1. Yes, insurance companies routinely require personal injury plaintiff's to undergo a defense medical examination pursuant to C.C.P. §2032.010, et seq. These examinations are done in virtually every case where there is a significant dispute as to the nature and extent of the injuries sustained in the collision, the medical care received, the amount of time taken off work, etc. The scope of the examination, however, is subject to negotiation and/or a meet and confer process. You don't state what kind of examination the defense is asking for, but 3 hours seems awfully long for most exams.
2. The defense is entitled to one physical examination. If the plaintiff refuses to appear, the defense will likely make a motion that will result in a court order to appear and possibly sanctions. If the defense seeks a mental examination, or more than one mental examination, it must obtain a court order, and there may be a basis for opposing such a motion depending on the circumstances of the case.
These questions should be discussed with the plaintiff's attorney.
You should immediately discuss this matter with your attorney. If you move forward with the Defense Medical Examination (DME) your attorney should be present with you. Alternatively, your attorney can retain a medical professional to attend the examination with you. This is imperative to ensure that the doctor retained by the carrier stays within the permissable scope of the examination.
I want to add some feedback to your questions in addition to the answers already provided.
It is very important for you and your attorney to appreciate the difference between a medical examination and a physical examination. The CA Code of Civil Procedure permits the defense to discover information through a “physical examination,” not a “medical examination.” The difference between these two types of examinations is significant.
A physical examination is what it sounds like—the physician may examine you to understand your physical injury and your symptoms. And the physician may ask you questions regarding the mechanism of injury.
A medical examination includes a physical examination but it goes further—it also includes a medical history. When a physician takes a medical history, they may ask you questions about your prior health issues, prior injuries, and prior accidents.
Insurance companies hire very skilled and crafty physicians to examine a personal injury plaintiff and usually they want the physician to “wash out” the plaintiff’s claim. The physician will do this by improperly taking a medical history of the plaintiff.
Too often, attorneys do not adequately prepare their clients for these physical examinations and when the client goes to the examination without their attorney, they may fall into the traps set by the physician taking the examination. Even if an attorney accompanies the client to the exam, the attorney has no legal basis to object to any questions. The plaintiff’s attorney’s only option if they feel the physician is breaking the rules is to end the exam early. This option is not necessarily in everyone’s best interest.
This process involves very delicate considerations. The attorney should safeguard the client’s rights by sending a notice to the defense attorney, who should forward it to the examining physician, that a medical history is not allowed.
Make sure to ask your attorney how to conduct yourself in the exam. Also, never exaggerate your injuries. And do not forget that the physician taking the exam is not your doctor, you are not their patient, and they are not there to treat your for you injury.
An independent medical examination (IME) occurs when a doctor/physical therapist/chiropractor who has not previously been involved in a person’s care examines an individual. There is not doctor/therapist-patient relationship.
treatment; and whether any permanent impairment remains after treatment. An IME may be conducted at the behest of an employer or an insurance carrier to obtain an independent opinion of the clinical status of the individual. Workers' compensation insurance carriers, auto insurance carriers, and self-insured employers have a legal right to this request. Should the doctor/therapist performing the IME conclude that a patient’s medical condition is not related to a compensatable event, the insurer may deny the claim and refuse paymentCode of Civil Procedure Section 2032
Code of Civil Procedure Section 2032.010-2032.020
2032.010. (a) Nothing in this chapter affects tests under the Uniform Act on Blood Tests to Determine Paternity (Chapter 2 (commencing with Section 7550) of Part 2 of Division 12 of the Family Code). (b) Nothing in this chapter requires the disclosure of the identity of an expert consulted by an attorney in order to make the certification required in an action for professional negligence under Sections 411.30 and 411.35.
2032.020. (a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action. (b) A physical examination conducted under this chapter shall be performed only by a licensed physician or other appropriate licensed health care practitioner. (c) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.
Code of Civil Procedure Section 2032.210-2032.260
2032.210. As used in this article, "plaintiff" includes a cross-complainant, and "defendant" includes a cross-defendant.
2032.220. (a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee. (b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first. (c) A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. (e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.
2032.230. (a) The plaintiff to whom a demand for a physical examination under this article is directed shall respond to the demand by a written statement that the examinee will comply with the demand as stated, will comply with the demand as specifically
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