Va. Sup. Ct. Rule 4:10 gives state court judges discretion to order physical and mental examinations of personal injury victims. All too frequently, however, the Rule is misused by the defense to trump up issues to create risk at trial and thereby to leverage unfairly a more favorable settlement, particularly in vehicle accident cases.
Although styled “independent medical exams” (“IMEs”) by the defense, in truth they really are “defense medical exams” (“DMEs”): the defense lawyer, not the judge, handpicks the examining doctor, and typically picks a doctor who regularly works for that defense lawyer, the defendant’s insurer, or both. As DME gatekeepers, judges should scrutinize carefully the defense-picked doctors, many of whom have defense bias for being hired in scores of cases and/or for being paid tens of thousands of dollars if not six-figures by the defense annually; plus, judges should allow videotaping of all vehicle accident and other DMEs to ensure honesty, completeness, etc.
Cheers to New York Supreme Court Justice Duane Hart for trying to stem the unsavory defense tide of DMEs! This year that Judge declared a mistrial, imposed sanctions on defense counsel, and suggested the doctor be sued when a surreptitious videotape showed that the defense’s orthopedist “lied” and committed “perjury” about the duration and the substance of his “quickie exam”.