• find some cause of your problem the insurer won't have to pay for,
• deny the existence of your problem,
• find that your problem falls within some policy exclusion,
• show that you're malingering, or disobeying medical advice,
• deny the severity of your complaints,
• list all the activities you're capable of,
• smear you by showing you lied or concealed other accidents, etc.,
• challenge the prognosis,
• show that no further treatment is needed,
• minimize the disability and inability to work,
• criticize the treating doctor's care,
• find inconsistencies in your medical history.

You must carefully prepare for this exam! Get and carefully review all the records from your treating doctor. If he won't or can't keep adequate records, go to a doctor who will.
Make sure that nothing material is omitted. If possible, have your attorney grill you about the medical history, just as though you were going to a deposition.

In California, the exam must be scheduled within 75 miles of your residence, and at least 30 days after notice is served on you. And they are entitled to only One such exam without a court order. The exam can't include any test or procedure which is painful, protracted or intrusive (generally including x-rays). The doctor must specify in advance the manner, conditions, scope, and nature of the examination. This means you should insist in advance on notification of anything that is going to be done that might be painful or invasive.

Establish reasonable ground rules for the IME. Confirm them in writing with defense counsel. If you can't agree, formally object, let the defendant move to compel, make your argument to the Court, and let it rule. Then be sure the examining doctor knows the ground rules. If he balks, don't go. See a sample letter below.

Take a witness to the IME with you (who could be your attorney), and have him/her audiotape the proceedings. California does not now allow videotaping, but HARP is trying to get that changed. If the doctor refuses to allow the witness or the taping, or there is any violation of the agreed upon or court-ordered conditions, refuse to proceed until they're complied with. If he refuses to comply, you may want to wait till the office closes or they call the cops to eject you, to prove that you were prepared to proceed, and it was the IME who refused.

Note that though the observer may monitor the exam, he may not participate in or disrupt it. (CCP § 2032.510)

In states without rules about whether you can take a witness and tape recorder into an IME, the insurance company may try to prevent you from doing so, saying it is against their policy. You are not bound by any of their policies which are not part of your contract, and it is highly unlikely that the contract addresses this issue. Make it clear, in writing, that you will attend the IME, but with your witness and recorder.

Sign nothing except the sign-in sheet when you arrive. Don't fill out any forms, or sign any waivers. Written statements or answers to written interrogatories are not part of the IME. In particular, refuse to fill out any "history forms" the office staff may say are "routine".

Don't allow anyone but the agreed-upon doctor to conduct the exam. Allow no one else in the room except a nurse, your witness, and, if needed, an interpreter.

The questions and physical examination must be limited to the area which is "in controversy". If you're complaining of a knee injury, there is no need to do a pelvic exam. You may limit the length of the exam to a reasonable time. And you may refuse to discuss parts of your medical history which are irrelevant. (But see below.)

IME doctors are trained to observe patients even when the formal exam is not taking place, as getting on and off the examining table. They have been known to leave a dollar bill on the floor to try to catch a patient bending over to pick it up, but perhaps not mentioning the accompanying grimace of pain. Some will even observe the way you get in and out of your car and walk across the parking lot. Be aware.

Always be friendly and polite. Never express anger, but be firm. Don't tolerate any abuse.

Make sure the oral medical history you give the doctor is complete. If he cuts you off, tell him "Doctor, I have not finished my answer to your question. May I please complete my answer? Don't you want to know the truth?" If the doctor persists in unfairly cutting off material answers, inform him you will leave. But be sure that you're so right that a judge will agree with you. Do not answer questions dealing with fault if that is an issue in your case. You should answer only those questions that are directed to medical issues. Remember: THIS IS NOT YOUR DOCTOR. Anything you tell this doctor will not be confidential and can be used by the insurer or HMO against you.

There is another school of thought which holds that you should give NO oral or written medical history to the examining doctor, since this amounts to a deposition without statutory safeguards. There is nothing in the Calif. statutes authorizing the doctor to take a medical history. If the IME request mentions history-taking, it should be formally objected to. If it doesn't, no history-taking should be allowed. Objection should also be made to liquidated excessive cancellation fees.

Refuse repetitive x-rays or examinations which are painful, protracted or intrusive.

If something the doctor does causes pain, be sure to say so. Don't be afraid to say "Ouch!". The witness should record what was being done and the results. If he observes your gait, have the witness mark the number of steps and the condition of the floor. If he measured grip, did he just have you squeeze his fingers, or did he use a dynamometer? If he measured symmetric muscle circumferences, did he measure up from the floor or a finger-tip to assure symmetric locations? Did he measure bending angles with a goniometer, or did he estimate them?

After the exam, revert to helpless patient mode, and ask the doctor for his prognosis, recommendations for future treatment, and criticisms of care provided so far. A refusal to answer will be useful if you go to a jury trial.

After the exam, pick up all the cards, brochures, etc. available in the doctors office. If other patients appear to be waiting for IMEs, talk to them, and get their names and phone numbers. They may be useful witnesses.

On the way out, have your witness serve the doctor with a subpoena for a deposition, a subpoena duces tecum for not only his report, but ALL his relevant records, notes, test results, x-rays, and the bill sent to the insurer, and a subpoena to appear at trial (with an on/call letter). This will save the trouble of trying to serve him later.

Schedule an appointment with your own doctor later that day, in case a rebuttal of any adverse findings is needed. Have him send for a copy of the IME's report as well, to check for errors and problems. If he's willing to be really proactive, he can phone the IME and ask if he or she had any good treatment ideas. If the reaction is very negative, he can call back and ask the office nurse for the IME's medical license. IME's like to wield power over patients; they do not like to see a Jedi Knight in the background.

For specific legal details, see Calif. Code of Civil Procedure 2032.010 - 2032.650.
Go to www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp and scroll down almost to the end.

7/6/02 - Flash! There is now a company in So. Calif. which will provide chiropractors or doctors to act as observers during IME, record everything, write a report, and testify if necessary. Figure on spending $500 for a chiropractor to $1300 for an orthopedist or neurologist. They're called Prime.

A substantially less expensive So. Calif. group, headed by Agnes Grogan RN, will provide RNs to do this service. They are 'VG Associates', and can be emailed at vgassoc@gte.net .

Another group providing doctors to accompany you to IME is "Advantage Representatives" at 1-888-977-8393, Dr. Karen Magarian.

Plaintiff will attend the defense medical examination on the following terms and conditions:

1. Plaintiff will be accompanied by counsel or other legal or medical representative to monitor the examination.
2. The examination will be audiotaped.
3. Plaintiff may bring a certified shorthand reporter to report the examination.
4. No one other than the plaintiff, plaintiff's representative, a court reporter, the defense medical examiner, and/or the defense examiner's employees will be present during the examination.
5. The examination will be limited to the medical conditions which are in controversy in this action.
6. Any persons assisting the defense medical examiner must be fully identified by name and title on the court reporter's records.
7. No diagnostic test which is painful, protracted, or intrusive will be permitted. Performance of such an examination by the defense medical examiner will be grounds for immediate termination of the examination.
8. Plaintiff will not orally relate medical history for portions of plaintiff's anatomy not directly in controversy in this action.
9. Plaintiff's history of the injury-producing event will be limited to the mechanism of injury.
10. Plaintiff will not sign or fill out any paperwork.
11. No radiologic studies will be permitted. Plaintiff will sign limited authorizations permitting defendant to obtain existing radiologic studies of any portion of plaintiff's anatomy in controversy in this law suit.
12. The total time for examination and applicable testing will not exceed ninety minutes. If any period of time exceeding thirty minutes goes by when plaintiff is not being actively examined by the defense examiner or the examiner's staff, the examination will terminate and plaintiff will depart.
13. No mental examination will be permitted.
14. Pursuant to Code of Civil Procedure § 2032.610, demand is hereby made for all discoverable reports and writings generated by the defense medical examiner, including but not limited to a detailed written report setting forth the history, examination, findings, results of all tests conducted, impressions, diagnoses, prognoses, and conclusions of the examiner, along with all reports of prior examinations of plaintiff made by this examiner or any other defense examiner.