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A GUIDE TO THE INDEPENDENT
MEDICAL EXAMINATION
Samuel D. Hodge, Jr.*
Melissa Thomas**
Connor Lacy***
ABSTRACT
Independent medical examinations (IMEs) are physicals
conducted at the request of a third party. An example is the
physical examination of a workers’ compensation claimant or life
insurance applicant, but IMEs are common in bodily injury
claims. These examinations are very important since they can
help decide whether a claimant is entitled to compensation or
qualifies for life insurance or a job. Most defense attorneys have
relied on medical reports and expert testimony from an
independent medical examiner but little is known about the
limitations or parameters of this assessment. In fact, there are a
multitude of legal issues surrounding the exam from whether the
physician can be sued for medical malpractice to whether a
representative of the examinee can be present during the
physical. Despite the frequent use of an IME and the many legal
issues swirling around the examination, little has been written
* Professor and Chair of the Department of Legal Studies at Temple
University, where he teaches both law and anatomy. He is also a skilled litigator and national lecturer who has written more than 150 articles and five
books on medicine and trauma. Address correspondence to Professor Hodge at
Temple University, Department of Legal Studies, 1801 Liacouras Walk, Alter
Hall, Room 464, Philadelphia, PA 19122 or via e-mail at temple885@aol.com.
** Graduate of the Temple University Beasley School of Law and a former
student in several of Professor Hodge’s law school classes.
*** Student at the Temple University Beasley School of Law and is a
Teaching Assistant for Professor Hodge.

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on the subject. This article will address the unique issues that
arise in an IME context.
TABLE OF CONTENTS
I.
II.

INTRODUCTION ................................................................... 340
THE PHYSICIAN-PATIENT RELATIONSHIP ........................... 341
A. The AMA’s Opinionthat an IME Creates a Limited
Patient-Physician Relationship .................................. 342
B. Jurisdictions That Recognize a Limited PatientPhysician Relationship ............................................... 343
C. Jurisdictions That Recognize a Doctor-Patient
Relationship ................................................................ 345
D. Jurisdictions That Do Not Recognize a DoctorPatient Relationship ................................................... 348
III. PARAMETERS OF THE INDEPENDENT MEDICAL EXAM ........ 350
A. Place of Examination .................................................. 352
B. Patient’s Representative at the IME .......................... 355
1. Presence of the Patient’s Attorney ........................ 355
2. Presence of the Patient’s Physician ....................... 360
3. Presence of Other Patient Representatives .......... 361
4. Recording or Video Taping .................................... 364
IV. FINANCIAL RESTRICTIONS ON IME DOCTORS .................... 367
V.
FURTHER TESTING REQUESTED BY AN IME DOCTOR ........ 367
A. Ordering an Examinee to Undergo Sedation for an
IME Procedure ............................................................ 370
VI. OBTAINING THE DOCTOR’S TAX RECORDS .......................... 371
VII. DISQUALIFYING A SPECIFIC IME DOCTOR.......................... 377
VIII. DISQUALIFYING A PHYSICIAN BASED ON BIAS.................... 379
XI. CONCLUSION ...................................................................... 380
I.

INTRODUCTION

John Smith was involved in an industrial accident and the
defense sent him for an orthopedic examination.1 At the start of
the appointment, the physician indicated that she was seeing Mr.
Smith at the request of the worker’s compensation carrier and
noted that the examination did not establish a doctor-patient

1 This is a hypothetical situation used to illustrate a standard Independent
Medical Examination.

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relationship. The claimant nodded in agreement, and the
physician proceeded with the exam during which time she
detected a cancerous appearing lesion on the worker’s back. The
physician said nothing and completed the IME. About one year
later, Mr. Smith was diagnosed with advanced melanoma which
cancer had spread throughout his body. Did the IME physician
have a duty to disclose to the examinee the abnormality she
detected during the examination?
Independent medical examinations (IMEs) are physicals
conducted at the request of a third party.2 An example is the
physical examination of a workers’ compensation claimant or life
insurance applicant, but IMEs are common in bodily injury
claims.3 Most defense attorneys have relied on medical reports
and expert testimony from an independent medical examiner but
little is known about the limitations or parameters of this
assessment.
This article will address the unique issues that arise in an IME
context including medical malpractice lawsuits brought against
the physician administering the examinations and other unique
patient rights questions.
II. THE PHYSICIAN-PATIENT RELATIONSHIP
Physicians provide important medical services in a variety of
contexts that do not always result in the creation of a
doctor/patient relationship. The classic example is the
independent medical examination (IME) in which the doctor
examines an individual on behalf of an insurance carrier or
defense attorney.4 They also perform physicals on behalf of
employers, certify pilots and truck drivers, and check the health
of applicants for life and disability insurance policies.
The duty of care owed by a physician in a traditional
doctor/patient relationship has been extensively litigated and
clearly established in a variety of decisions.5 Generally, that duty
See, e.g., FED. R. CIV. P. 35(a) (providing for a court-ordered medical
examination of “a party whose mental or physical condition . . . is in
controversy”).
3 See, e.g., Clark v. Siara Mgmt., Inc., 791 N.Y.S.2d 670, 670 (N.Y. App. Div.
2005); Harris v. Kreutzer, 624 S.E.2d 24, 27 (Va. 2006).
4 See Briglia v. Exxon Co., USA, 708 A.2d 1246, 1248 (N.J. Super. Ct. Law
Div. 1997) (discussing underlying rational for IMEs).
5 See, e.g., McLeod v. Plymouth Court Nursing Home, 957 F. Supp. 113, 115
(E.D. Mich. 1997).
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is to “treat a [patient] professionally, to fulfill the duty to exercise
that degree of skill, care and diligence exercised by members of
the same profession, practicing in the same of similar locality, in
light of the present state of medical science.”6
Most courts accept the notion that a doctor-patient relationship
is formed when a patient seeks medical assistance from a doctor
and the physician accepts that person as a patient.7 Whether a
doctor-patient relationship exists is an issue for the fact-finder to
determine.8 The establishment of this connection is important
because courts will dismiss a medical malpractice claim if it finds
no relationship existed at the time of the alleged harm.9
Jurisdictions differ in their approaches to determining whether
IME doctors owe a duty of care to IME patients.10 This is
important because it has implications on whether an IME
claimant can bring a medical malpractice or other professional
negligence suits against their IME examiner.11 Most jurisdictions
have adopted one of the following rationales: an IME doctor owes
the patient a limited duty, no doctor-patient relationship is
formed, or a doctor-patient relationship exists.12
A. The AMA’s Opinion that an IME Creates a
Limited Patient-Physician Relationship
In a traditional doctor-patient relationship, the physician owes
the patient a continuing duty to monitor health and anticipate
medical issues and needs.13 In contrast, an independent medical
Id.
Childers v. Frye, 158 S.E. 744, 746 (N.C. 1931); see also Young v. Crescente,
39 A.2d 449, 451 (N.J. 1944) (holding that the general rule that a doctor-patient
relationship triggered by the physician agreeing to treat a patient, was not
applicable to the case at bar).
8 Garcia v. City of Boston, 115 F. Supp. 2d 74, 78 (D. Mass. 2000).
9 See Craddock v. Gross, 504 A.2d 1300, 1303 (Pa. Super. Ct. 1986) (holding
that summary judgment was appropriate because a doctor-patient relationship
did not exist at the time of the alleged malpractice).
10 See generally Ranier v. Frieman, 682 A.2d 1220, 1223 (N.J. Super. Ct. App.
Div. 1996) (discussing the differing views of jurisdictions when evaluating the
scope of the duty owed to a patient by a physician in an IME).
11 See Craddock, 504 A.2d at 1223 (discussing the decisions of other
jurisdictions).
12 See Ranier, 682 A.2d at 1224 (finding a IME physician owes a duty of care
if the doctor is examining a specific complaint or the patient presents with
injuries).
13 See, e.g., Weiss v. Rojanasathit, 975 S.W.2d 113, 119–20 (Mo. 1998) (en
6
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examiner is only assessing the individual’s health or injury at the
time of the examination.14 The American Medical Association
(AMA) addressed the issue of an independent medical
examination15 and concluded that when a physician is
responsible for performing an isolated assessment of an
individual’s health or disability for an employer, business, or
insurer, a limited patient-physician relationship should be
imposed.16 This relationship is hard to define, as evidenced by its
varied application throughout the courts in the United States. It
is the AMA view that this limited relationship requires
physicians to inform the patient of important health information
and suggesting that the patient follow up with their own
physician.17 The independent medical examiner, however, is not
required to treat the person like they would normally handle
their own patients.18
The AMA further noted that the health care provider must
notify the examinee of irregularities and other significant health
findings uncovered as the result of the physical including making
sure that the patient comprehends the issue.19 Despite this clear
pronouncement, the courts have not uniformly embraced the
AMA’s opinion.20
B. Jurisdictions That Recognize a Limited
Patient-Physician Relationship
Some jurisdictions do not have a bright-line standard
regarding an IME physician’s duty to examinees.21 Instead, they
banc) (stating that a physician’s “duty to attend the patient” continues until the
doctor-patient relationship terminates). But see Am. Med. Ass’n Council on
Ethical & Judicial Affairs, Formal Op. 10.03 (Dec. 1999) [hereinafter AMA Op.
10.03], available at http://www.ama-assn.org/ama/pub/physician-resources/
medical-ethics/code-medical-ethics/opinion1003.page (explaining that “isolated
assessment[s] of an individual’s health” for a third party creates a “limited
patient-physician relationship”).
14 See, e.g., Ranier, 682 A.2d at 1221.
15 AMA Op. 10.03, supra note 13.
16 Id.
17 Id.
18 Id.
19 Id.
20 See Smith v. Radecki, 238 P.3d 111, 115–16 (Alaska 2010) (discussing the
various approaches State Courts have taken to the AMA rule).
21 See Harris v. Kreutzer, 624 S.E.2d 24, 29–30 (Va. 2006) (explaining that

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have held that an independent medical examiner owes a limited
duty that does not arise to the standard duty assigned to a
doctor-patient relationship.22
For instance, in Virginia, a plaintiff successfully defeated a
motion to dismiss a medical malpractice suit against her IME
doctor.23 In Harris v. Kreutzer, the plaintiff suffered a brain
injury in a car accident and filed suit against the driver.24 The
court ordered Harris to undergo an IME to evaluate the extent of
her brain injury.25 The doctor was a clinical psychologist and
during the exam, the psychologist was alleged to have verbally
abused Ms. Harris and accused her of faking her injuries.26 Ms.
Harris filed a medical malpractice suit against the psychologist
who moved to dismiss the claim.27 The Virginia Supreme Court
held that the negligent performance of a physical or mental IME
states a viable cause of action.28 The plaintiff claimed that the
doctor knew that her psychological condition would be
aggravated if she were verbally abused during the exam.29 Her
medical malpractice claim alleged that the IME doctor
intentionally aggravated her preexisting condition of which he
was aware and that, as a result of his behavior during the IME,
her health greatly deteriorated.30 The court held that an IME
does not create a traditional doctor-patient relationship, but a
limited relationship does exist; “[t]he recognition of a limited
relationship preserves the principle that the IME physician has
undertaken limited duties but that he has done so in a situation
where he is expected to exercise reasonable care commensurate
with his experience and training.”31
Other jurisdictions have expressed a similar view in claims
arising from alleged negligence during an IME.32 Texas and
there “has not been [a] uniform” method for determining whether a physician
owes a duty to a patient in a court ordered medical examination).
22 Id. at 30.
23 Id. at 27.
24 Id.
25 Id.
26 Id.
27 Id. at 27–28.
28 Id. at 32.
29 Id. at 27.
30 Id.
31 Id. at 31 (quoting Dyer v. Trachtman, 679 N.W.2d 311, 316 (Mich. 2004)
(internal quotations omitted)).
32 See Dyer, 679 N.W.2d at 315–16 (discussing competing state law

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Minnesota hold that the independent medical examiner owes a
limited duty to an IME patient, which is to conduct the
examination properly without causing further injury to the
patient/plaintiff.33 New Jersey has also found that an IME
physician owes a duty of care to his examinee if the doctor is
examining a specific complaint.34 The 5th Circuit has reasoned
that a doctor contracted by a third party to perform an
examination still has a duty to inform a patient-plaintiff of a
potentially life-threatening injury at the physical35 and the 9th
Circuit held that an examining physician has a duty under
Washington law to inform those examined of abnormal test
results, despite the absence of doctor-patient relationship.36
C. Jurisdictions That Recognize a
Doctor-Patient Relationship
The Fifth Circuit Court of Appeals interpreted Louisiana law
to hold that an IME does create a doctor-patient relationship that
is necessary for negligence claims against a physician.37 The
estate of a deceased brought the case after the patient died from
lung cancer.38 Prior to the person’s diagnosis, the deceased
underwent an annual physical that was a condition of his
employment.39 The doctor gave the deceased a clean bill of health
and allowed him to continue working.40 A year later, the deceased
was diagnosed with lung cancer and subsequently died. The
complaint sounded in negligence for the failure to diagnose the
deceased’s lung cancer at the employee-mandated evaluation.41
The employer’s doctor moved to dismiss the claim because there
was no doctor-patient relationship.42 The Court of Appeals
disagreed and opined:
decisions).
33 In re Certified Question from Fourteenth Dist. Court App. Tex., 740
N.W.2d 206, 211 (Mich. 2007); Henkemeyer v. Boxall, 465 N.W.2d 437, 439
(Minn. Ct. App. 1991).
34 See Reed v. Bojarski, 764 A.2d 433, 442–43 (N.J. 2001) (holding that preemployment medical exams created a duty).
35 Green v. Walker, 910 F.2d 291, 296 (5th Cir. 1990).
36 Daly v. United States, 946 F.2d 1467, 1470 (9th Cir. 1991).
37 Green, 910 F.2d at 296.
38 Id. at 291.
39 Id. at 292.
40 Id.
41 Id.
42 Id. at 292–93.

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We therefore now hold that when an individual is required, as a
condition of future or continued employment, to submit to a
medical examination, that examination creates a relationship
between the examining physician and the examinee, at least to the
extent of the tests conducted. This relationship imposes upon the
examining physician a duty to conduct the requested tests and
diagnose the results thereof, exercising the level of care consistent
with the doctor’s professional training and expertise, and to take
reasonable steps to make information available timely to the
examinee of any findings that pose an imminent danger to the
examinee’s physical or mental well-being.43

The courts in Kansas have held that an IME doctor must not
cause harm during the examination and must use the physician’s
best judgment in treatment while relying on their skill and
experience.44 In Maryland, a plaintiff must show that a doctorpatient relationship existed in order to establish a medical
malpractice claim.45 The leading case, in that state, held that a
doctor-patient relationship is established, “only . . . as a result of
a contract, express or implied, that the doctor will treat the
patient with proper professional skill and the patient will pay for
such treatment.”46
In Montana, the court held that a patient could sue her IME
doctor for medical malpractice.47 The court phrased the question
as “whether a physician who performs a medical examination of
an individual at the request of a third party has a duty of care to
the examinee and, if so, what is the scope of that duty.”48 The
plaintiff, Ms. Webb, injured her back in a work-related injury.49
She treated with a chiropractor and physical therapist.50 The
only medical doctor she saw, however, was the physician of her
employer’s insurer.51 That physician ordered a CT scan in order
to determine whether she had a herniated disk.52 As a result of
the scan, the physician informed the examinee that she did not
Id. at 296.
Smith v. Welch, 967 P.2d 727, 736 (Kan. 1998).
45 Dingle v. Belin, 749 A.2d 157, 164 (Md. 2000).
46 Id. (quoting Hoover v. Williamson, 203 A.2d 861, 862 (Md. 1964)).
47 See Webb v. T.D., 951 P.2d 1008, 1014 (Mont. 1997) (holding that Montana
law imposed a duty on a doctor performing an IME).
48 Id. at 1009.
49 Id.
50 Id.
51 Id. at 1009–10.
52 Id. at 1010.
43
44

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have a ruptured disk and could return to work.53 Ms. Webb
resumed her employment, but severely herniated an
intervertebral disc and suffered limitations as a result of the
injury.54 She filed a malpractice suit against the insurer’s
physician55 who then filed a motion to dismiss.56 The doctor
argued that he was retained only to evaluate whether Ms. Webb
could return to work, that he was not hired to provide any
treatment and did not provide any treatment.57 Since the doctor
was retained by the insurer, he argued that he did not owe Webb
a duty because they did not have a doctor-patient relationship.58
The Supreme Court of Montana disagreed and held:
When an individual is required, as a condition of future or
continued employment, to submit to a medical examination, that
examination creates a relationship between the examining
physician and the examinee, at least to the extent of the tests
conducted. This relationship imposes upon the examining
physician a duty to conduct the requested tests and diagnose the
results thereof, exercising the level of care consistent with the
doctor’s professional training and expertise, and to take reasonable
steps to make information available timely to the examinee of any
findings that pose an imminent danger to the examinee’s physical
or mental well-being.59

The court did not find that all IME physicians automatically
owe the same duty of care that a typical treating physician owes
to patients.60 Instead, the scope of the duty must be determined
on a case-by-case basis.61 The court reasoned that an IME
physician, no matter the scope of the examination, has two
duties: 1) to exercise ordinary care to discover conditions that
pose an imminent danger to the patient’s well-being and to take
reasonable steps to inform the patient of those conditions; and 2)
to exercise ordinary care in advising the patient of their condition
after the examination with advice in line with the physician’s
profession.62
53
54
55
56
57
58
59
60
61
62

Id.
Id.
Id. at 1009.
Id. at 1010.
Id.
Id.
Id. at 1013–14.
Id. at 1014.
Id.
Id.

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D. Jurisdictions That Do Not Recognize
a Doctor-Patient Relationship
Several jurisdictions do not recognize a doctor-patient
relationship in an IME-related context.63 In Alaska, a plaintiff
could not pursue a medical malpractice case against an IME
doctor for an alleged failure to uncover the underlying cause of
his back problems.64 The plaintiff, Mr. Smith, injured his back
while unloading cases of antifreeze from a truck.65 As he lifted
the cases and twisted his body, he experienced a sharp pain in
his back and leg that took his breath away.66 Mr. Smith was
diagnosed with an acute muscle strain and was placed on
temporary disability for two weeks.67 The worker’s condition did
not improve and further testing revealed abnormalities in his
back.68 After a few months, he was allowed back to work, but was
restricted to light-duty work.69
Mr. Smith continued to report pain over the next few months
and had additional medical treatment.70 After two years of
treatment, the workers’ compensation provider requested an
IME.71 When Mr. Smith arrived at the exam, the IME physician
explicitly told Mr. Smith that he was only seeing him to evaluate
his work-related injuries and that a doctor-patient relationship
did not exist.72 The IME doctor found there was no permanent
injuries related to the work incident, advised against further
medical treatment, and suggested psychological treatment and
weight loss.73 A year after that IME, Smith had a MRI that
revealed several disc problems and a sacral Tarlov cyst that was
compressing the nerves at the base of his spine.74 Smith filed a
worker’s compensation claim and sued the IME doctor for
63 See, e.g., Smith v. Radecki, 238 P.3d 111, 112 (Alaska 2010); Lawliss v.
Quellman, 832 N.Y.S.2d 328, 329 (N.Y. App. Div. 2007); Joseph v. McCann, 147
P.3d 547, 551 (Utah Ct. App. 2006); Hafner v. Beck, 916 P.2d 1105, 1109 (Ariz.
Ct. App. 1995).
64 Radecki, 238 P.3d at 112.
65 Id.
66 Id.
67 Id.
68 Id.
69 Id. at 112–13.
70 Id. at 113.
71 Id.
72 Id.
73 Id.
74 Id.

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medical malpractice for failing to diagnose and treat his back.75
The court dismissed the claim because a doctor-patient
relationship was never established and Mr. Smith appealed.76
The Supreme Court of Alaska affirmed the lower court’s
decision and held that the doctor could not be held liable for
medical malpractice because there was no doctor-patient
relationship and no corresponding duty of care.77 The physician
expressly told Mr. Smith that no doctor-patient relationship
would be formed at the IME because the purpose of the
examination was limited to the specific injuries identified by the
employer’s insurance carrier.78
Smith raised two arguments on appeal.79 First, he asserted
that the IME doctor was a member of the AMA, whose guidelines
provide that a limited physician-patient relationship is
established when an IME is performed.80 Second, he argued that
a growing number of jurisdictions recognize a limited duty of care
exists when IMEs are performed.81 The court dismissed the first
argument because the AMA guidelines are not binding in
Alaska.82 The court found against Mr. Smith’s second argument,
although it recognized the growing number of states that
acknowledge a limited doctor-patient relationship at an IME.83
However, the court found that the doctrine was not implicated
because the IME doctor did not fail to diagnose any imminently
dangerous conditions, did not go beyond the boundaries of a
typical IME by offering any medical advice, nor did he injure Mr.
Smith during the examination.84
New York typically does not find a doctor-patient relationship
when a third party has hired an IME doctor unless the medical
examiner advises the patient-plaintiff like a normal treating
physician would.85 In Utah, a workers’ compensation plaintiff did
not establish a doctor-patient relationship with an IME doctor
because he did not seek treatment from the doctor, nor did the
75
76
77
78
79
80
81
82
83
84
85

Id.
Id. at 112.
Id. at 117.
Id. at 115.
Id.
Id.
Id.
Id. at 115–16
Id. 116.
Id. at 117.
Lawliss v. Quellman, 832 N.Y.S.2d 328, 329 (N.Y. App. Div. 2007).

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doctor treat the plaintiff.86
Arizona courts have held that an IME doctor does not owe a
duty because the physician only owes a duty to the insurer, not
the patient-plaintiff.87 The seminal case in Arizona involved a
plaintiff injured at her job who filed suit alleging physical and
psychological injuries.88 The plaintiff, Ms. Hafner, underwent an
IME with a psychologist who concluded that she did not require
any further psychological treatment.89 The IME psychologist had
been hired by her employer’s insurer.90 The IME doctor’s opinions
stood in opposition to her treating psychologist’s impressions.91
Accordingly, her employer’s insurer ceased providing benefits
and Ms. Hafner filed a negligence suit against the physician for
negligent treatment.92
The Arizona Court adopted the Texas standard and held that
the physician only had a “duty to meet the professional standard
of care in conducting the IME and in preparing his report ran
only to the [insurer], which requested his services, and not to the
examinee.”93 The court warned that if it recognized a doctorpatient relationship that amounted to a duty of care that no
physician would be willing to testify in any legal cases.94
III. PARAMETERS OF THE INDEPENDENT MEDICAL EXAM
The scope of an IME is often guided by a statute or court rule.95
For instance, Rule 35 of the Federal Rules of Civil Procedure
provides:
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
may order the party to submit to a physical or mental examination
by a suitably licensed or certified examiner or to produce for
Joseph v. McCann, 147 P.3d 547, 551 (Utah Ct. App. 2006).
Hafner v. Beck, 916 P.2d 1105, 1106 (Ariz. Ct. App. 1995).
88 Id.
89 Id.
90 Id.
91 Id.
92 Id.
93 Id. at 1108.
94 Id. at 1107–08.
95 Heidi Oertle & Shawna Boothe, How to Correctly Approach Independent
Medical Exams, AM. BAR ASS’N (July 23, 2014), http://apps.americanbar.org/
litigation/committees/products/articles/summer2014-0714-how-to-correctlyapproach-independent-medical-exams.html.
86
87

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examination the person in the party’s custody or legal control. The
order may be made only on motion for good cause shown and upon
notice to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made. 96

The states have their own statutes that control an IME.97 It is
not surprising that these laws vary in what they cover in the
regulations of independent medical examinations. For instance,
Rule 35 of Montana’s Rules of Civil Procedure offers an example
of the standard scope of independent medical examinations:
(a) Order for Examination.
(1) In General. The court where the action is pending may order a
party whose mental or physical condition—including blood group—
is in controversy to submit to a physical or mental examination by
a suitably licensed or certified examiner. The court has the same
authority to order a party to produce for examination a person who
is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all
parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of
the examination, as well as the person or persons who will perform
it.98

The statute then lays out the processes for the parties
exchanging the results of the IME and any other examinations,
as well as the waiver of privilege if the examined party continues
with legal action that revolves around that party’s condition.99
Rule 1.360 of the Florida Rules of Civil Procedure follows
closely the Montana statute, but also adds that once a party
requests an IME, the other party has thirty days for a response,
unless the responding party is the defendant, in which case the
statute allows for a forty-five day response.100 This reply must
either accept the request or set forth reasons for objecting to the
IME; the response must also note who else will accompany the
party to the IME and what roll they will be playing during the
examination.101
Vermont Statutes Annotated Title 21 § 667 reads that,
FED. R. CIV. P. 35(a).
Oertle & Boothe, supra note 95.
98 MONT. R. CIV. P. 35.
99 Id.
100 FLA. R. CIV. P. 1.360(a)(1)(A).
101 Id.
96
97

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regarding work place medical disputes, it is up to a commissioner
to decide on which physician will be chosen to perform an IME,
and that the finding of the IME will be binding on the parties
unless there is fraud, substantial error, or deviation from
accepted medical preferences.102 The commissioner will pick the
physician to perform the IME from a list of health care providers,
which will be compiled from representatives of both management
and labor, preferably from the Governor’s Advisory Council on
Worker’s Compensation.103 The names that appear on both lists
will be the physicians that the commissioner will select for the
examination.104
Despite the amount of statutes that try to control the process of
the independent medical examinations, there are still a large
number of issues that the courts must decide. The remaining
portion of this article will focus on the areas of controversy that
have been the most prominent in litigation.
A. Place of Examination
Generally, the defense has the right to designate the doctor
and where an IME will take place.105 Typically, plaintiff and
defense counsel will agree on the time, place, and location of the
examination.106 However, if they cannot agree, the judge
presiding over the case will make a determination regarding the
dispute.107
For example, would it be reasonable to require a plaintiff to
travel seventy-five miles for an IME? At first blush, this distance
sounds extreme but the Court of Appeals in Louisiana found that
it was allowable.108 The court reasoned that the IME doctor was
the only nearby health care provider specializing in the plaintiff’s
injury and the defense offered to pay for all costs incurred by the
VT. STAT. ANN. tit. 21, § 667(b) (West 2014).
Id.
104 Id.
105 See William Scott Wyatt & Richard A. Bales, The Presence of Third
Parties at Rule 35 Examinations, 71 TEMP. L. REV. 103, 106 (1998) (“The
examination may be conducted by a suitably licensed or certified expert
requested by the defendant.”).
106 See id. at 106 n.19 (stating that parties can stipulate to “the setting for
examination”).
107 Id. at 106–07.
108 Weaver v. Mansfield Hardwood Lumber Co., 1 So.2d 103, 107 (La. Ct.
App. 1941).
102
103

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claimant in traveling to the examination.109 It is common
knowledge the court noted that medical specialists cannot travel
to make home visits because it would be impractical and the
physician would probably not be able to take the equipment
necessary for the IME.110
However, the Montana Supreme Court held that traveling
outside of the state to be an unreasonable request.111 The lower
court sustained the defendant’s request to have the plaintiff
submit to an IME in Portland, Oregon, 750 miles from the
plaintiff’s home.112 The Supreme Court of Montana disagreed,
finding that the lower court had abused its’ discretion.113 The
court held that the location, as well as the nature of the exam
was an infringement of the plaintiff’s fundamental rights by
being overly burdensome.114
Florida courts have held that a non-state resident plaintiff
cannot be compelled to attend an IME in that state.115 For
instance, a defendant tried to compel the plaintiff to come to
Florida for an IME, at his own expense, after he had already
been to Florida for a disposition.116 The court found the
“reasonable place” standard set by state statute to require the
IME to take place in the plaintiff’s hometown, or the nearest area
where an appropriate physician could be found.117 The court
noted that the nonresident plaintiff had to return to Florida for a
deposition, but IMEs were different and did not have to follow
the rigid rules of depositions.118 The court did find that it would
still be the defendant’s choice to pick the physician within the
area convenient to the plaintiff.119 However, the Florida court
modified its earlier decision.120 It found that making a
nonresident plaintiff submit to a compulsory medical
examination (CME) when already coming to Florida for a
Id.
Id.
111 Simms v. Mont. Eighteenth Judicial Dist. Court, 68 P.3d 678, 684 (Mont.
2003).
112 Id. at 682.
113 Id. at 685.
114 Id.
115 Tsutras v. Duhe, 685 So.2d 979, 981 (Fla. Dist. Ct. App. 1997).
116 Id.
117 Id.
118 Id. at 980–81.
119 Id. at 981.
120 Goeddel v. Davis, 993 So.2d 99, 100–01 (Fla. Dist. Ct. App. 2008).
109
110

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deposition was reasonable.121 After all, the defendants were
partially responsible for paying for the expense of the trip.122
New York has held that a plaintiff cannot dictate the location
of where the IME will take place.123 In that dispute, plaintiff
provided a list of five physicians within the city that were
practical for the claimant.124 The court held that it was the right
of the defendant to decide the location and time of the IME.125
The defendant had the right to choose a physician that they had
faith in not only to perform the examination, but also to appear
at the court date to testify.126
The federal district courts, however, have generally ruled that
plaintiffs should have to submit to an examination in the
jurisdiction in which the suit is brought.127 What happens,
however, when the plaintiff lives in another jurisdiction, far
removed from the location of the courthouse, and claims that his
health is too poor to travel? The Nevada District Court had to
answer this question when the designated place of the IME was
in Las Vegas, but the plaintiff lived in Houston, Texas.128 The
court noted that the location of the IME did not have to be in the
jurisdiction of the suit, if the plaintiff could show good cause for
why they could not travel to that location.129 The court continued
by noting that this proof of good cause was very high, and that
the plaintiff had to show more than poor health, but instead had
to prove why poor health made the litigant incapable of travel or
why travel would exacerbate the sickness.130 For one plaintiff, the
court decided that fusion surgery was not a good cause, since it
only kept her from flying and the surgery happened before her
accident in Las Vegas, which showed her injury did not impede
her ability to travel.131 For a second plaintiff, the court concluded
that severe right heart failure that caused the plaintiff to be
Id.
Id. at 101.
123 Yu Hui Chen v. Chen Li Zhi, 971 N.Y.S.2d 139, 139–40 (N.Y. App. Div.
2013).
124 Id. at 139.
125 Id. at 139–40.
126 Id. at 140.
127 Levick v. Steiner Transocean Ltd., 228 F.R.D. 671, 672 (S.D. Fla. 2005).
128 Mansel v. Celebrity Coaches of Am., Inc., No. 2:13-cv-01497-JAD-NJK,
2013 WL 6844720, at *1 (D. Nev. Dec. 20, 2013).
129 Id. at *2.
130 Id.
131 Id.
121
122

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hospitalized several times in the last six months was also not
good cause, since there was no proof that travel would worsen his
condition.132 Accordingly, the court held that there was no reason
to move the location of the IME to Houston.133
B. Patient’s Representative at the IME
Patients often feel more comfortable if someone accompanies
them to the IME. This can range from the patient’s attorney, a
nurse, or his or her own physician. These individuals often
accompany the patients not only to comfort them, but also to
observe the examination so that they could potentially testify to
what occurred at the physical.134
1. Presence of the Patient’s Attorney
Attorneys are usually allowed to accompany the claimant to
the examination.135 For instance, the Alaska Supreme Court
recognized that a party is generally entitled to have her attorney
present during a physical examination.136 The court held that an
independent medical examination is a crucial part of the civil
litigation process.137 Because the party being evaluated is entitled
to legal representation through all parts of the litigation, the
party is entitled to have an attorney present.138
Similarly, the Supreme Court of California held that because a
physician may ask questions that pertain to liability, the patient
is entitled to have counsel present to advise her during the
examination.139 There are, however, restrictions on what counsel
can do during the event.140 The Supreme Court of New York held
Id.
Id. at *3.
134 See Langfeldt-Haaland v. Saupe Enters., Inc., 768 P.2d 1144, 1146–47
(Alaska 1989) (discussing an attorney’s role in an examination).
135 See id. at 1145 (explaining which States permit attorneys to be present
during an IME).
136 Id. at 1147.
137 Id. at 1146.
138 Id.
139 Sharff v. Superior Court of City & Cnty. of San Francisco, 282 P.2d 896,
897 (Cal. 1955).
140 See Jakubowski v. Lengen, 450 N.Y.S.2d 612, 614 (N.Y. App. Div. 1982)
(limiting a lawyer’s role at an IME “to the protection of the legal interests of his
client apart from the actual physical examination”); see also Bacallao v.
Dauphin, 963 So.2d 962, 965 (Fla. Dist. Ct. App. 2007) (explaining that an
attorney must satisfy a two-prong test in order to exclude a third party observer
132
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that an attorney should not interfere with the doctor’s physical
examination or raise unreasonable objections to the treatment.141
The court stated that the attorney’s role should be limited to the
protection of the client’s legal interests and should not interfere
with the actual physical examination in which the lawyer has no
role.142 If the attorney’s actions do interfere with the
examination, the trial judge may take appropriate steps, in light
of the facts and circumstances of the case, to provide the doctor
with a reasonable opportunity to complete his examination.143
Florida allows for an attorney to be present during a client’s
IME, unless the objecting party can meet a two-pronged test to
keep the lawyer out of the examination.144 The first prong is that
there has to be case specific facts that would bar the attorney
from being present.145 In this case, the objecting party presented
proof that the attorney had been present at a previous IME for
the same case, had interrupted the examination, and told the
client not to answer questions the physician asked.146 The court
held that this evidence was enough to satisfy the first
requirement of the test, but that the objecting party failed to
meet the second prong; proof during an evidentiary hearing that
there were no other physicians in the area who would perform
the IME under those conditions.147 Without proof that no other
physician would do the IME with the petitioner’s attorney
present, the objecting party could not exclude the attorney from
the examination.148 The court concluded by stating that no third
party should interfere with the IME, and if there was such
interference, the trial court must take reasonable steps to make
sure the examination can be completed.149
The Florida Supreme Court expanded the right to have an
attorney present at an examination that’s not yet part of the
adversarial process.150 The court found that a personal injury
protection (PIP) examination to decide whether the insured
from an IME).
141 Jakubowski, 450 N.Y.S.2d at 614.
142 Id.
143 Id.
144 Bacallao, 963 So.2d at 965–66.
145 Id. at 965.
146 Id.
147 Id. at 967–68.
148 Id.
149 Id. at 969.
150 U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla. 2000).

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would receive benefits from the insurer should have the same
protections as a worker’s compensation IME.151 The court
reasoned that at a PIP examination the insurer and insured are
not in agreement at that point, and there is the possibility of a
future adversarial process, so the insured should have the
protection of having an attorney present.152
The Montana Supreme Court held that the patient’s attorney
was only allowed to be present during the portion of the
examination when the medical history is taken or the patient is
questioned as to how the injury occurred.153 The court held that
the attorney could not be present during the actual physical
examination because the possibility of the lawyer’s interference
with the physical examination outweighed any benefit of
allowing the attorney’s presence.154
In contrast, several jurisdictions do not allow attorneys to
accompany their clients to an independent medical
examination.155 For instance, Delaware generally does not allow
attorneys to accompany patients to an IME.156 The court
reasoned that the presence of the plaintiff’s attorney would
intimidate and disrupt the examination and would not allow the
defendant to gather a complete and fair evaluation of the
claimants.157
Similarly, Minnesota courts have held that a personal injury
plaintiff does not have a right to have their attorney present
during the exam.158 Ultimately, the judge has broad discretion to
allow or disallow an attorney to attend an IME.159 The Minnesota
courts recognize, however, that the physicians are already part of
the adversarial process because the defendant has selected them
and is paying for their services.160 The court reasoned that
instead of an attorney attending the exam, the physician’s report

Id.
Id.
153 Mohr v. Dist. Court of Fourth Judicial Dist., 660 P.2d 88, 89 (Mont. 1983).
154 Id.
155 See, e.g., Rochen v. Huang, 558 A.2d 1108, 1111 (Del. Super. Ct. 1988);
Wood v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 353 N.W.2d 195, 198
(Minn. Ct. App. 1984).
156 Rochen, 558 A.2d 1108, 1110 (Del. 1988).
157 Id.
158 Wood, 353 N.W.2d at 198.
159 Id. at 196–97.
160 Id.
151
152

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should be attacked on cross-examination.161 The defense attorney
will have the testimony of his IME doctor and the plaintiff’s
attorney will rely on the physician with whom the plaintiff has
been treating.162
The federal courts have been largely uniform in rejecting the
right for an attorney to be present at an IME.163 For instance, the
District Court of Delaware held that allowing the presence of the
attorney at an IME would cause the proceeding to become part of
the adversarial process, which is unfair, since the physician is
acting on the court’s behalf as a non-adversarial party.164 The
court also noted that an attorney should be reluctant to be
involved in an examination in case the answers given by the
plaintiff came into question, where the attorneys may find
themselves being called as a witness, which would mean they
would have to recuse themselves from the case.165
The Eastern District Court of Wisconsin, however, has found
that counsel may be present during independent medical
examinations.166 The plaintiff alleged that she had extreme
emotion distress due to sexual harassment and requested that a
third party be present at the IME to insure that the questions
did not extend beyond the permissible limits.167 The court found
that the plaintiff’s interest in protecting herself during an
adversarial process was greater than the defendant’s desire to
have the most effective use of their expert.168 The court concluded
that regardless of the claim of emotional damage, a defendant
might unfairly gain advantages in an unsupervised IME.169 The
court did not believe that the IME process was sufficiently
impartial and held that a plaintiff could have a third party,
including their attorney, present at the examination.170 This
holding is not followed by any other federal courts.
The federal courts rejection of allowing an attorney to be
Id. at 197.
Id.
163 See Wyatt & Bales, supra note 105, at 110 (explaining that an
“overwhelming majority of courts . . . have denied the examinee’s request to
have his attorney present during the examination”).
164 Warrick v. Brode, 46 F.R.D. 427, 428 (D. Del. 1969).
165 Id.
166 Zabkowicz v. W. Bend Co., 585 F. Supp. 635, 636 (E.D. Wis. 1984).
167 Id.
168 Id.
169 Id.
170 Id.
161
162

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present can change based upon state law in the jurisdiction of the
court.171 In Shirsat v. Mutual Pharmaceutical Co., Inc.,172 the
Eastern District of Pennsylvania, considered whether to allow an
observer at a psychiatric IME, and decided not to follow an
earlier case in the same district that allowed an independent
medical expert to attend the psychiatric exam.173 The court found
that, “an observer, court reporter, or recording device, would
constitute a distraction during the examination and work to
diminish the accuracy of the process.”174 The court made its
decision based on the fact that the plaintiff requesting the
presence of an observer had not shown any evidence that the
defendant’s medical examiner was biased except for the claim
that they were hired by the defense.175 It held that in allowing an
observer to be present would turn an objective evaluation into an
adversarial event.176 The Eastern District later reversed this
opinion in light of an amendment in state law on the topic.177 The
court decided to disregard Shirsat due to the newly amended
Rule 4010(a)(4)(i) of the Pennsylvania Rules of Civil Procedure,
which expressly gave the right for an attorney or another
observer to be present at an IME.178 The court pointed out that
the current case involved a physical examination, while the
Shirsat dealt with a psychological examination.179 It also stated
that a psychological examination may depend on, “unimpeded
one-on-one communication between doctor and patient.”180 The
right for an observer to be present was later extended to
psychological examinations by the Eastern District, with the
stipulation that the attorney could not interfere with the IME
and had to sit where the plaintiff being examined could not see
171 See, e.g., Gensbauer v. May Dep’t Stores Co., 184 F.R.D. 552, 552 (E.D.
Pa.1999) (allowing an attorney to be present during a medical examination
under Pennsylvania state law).
172 169 F.R.D. 68 (E.D. Pa. 1996).
173 Id. at 72.
174 Id. at 70.
175 Id.
176 Id.
177 See Gensbauer v. May Dept. Stores Co., 184 F.R.D. 552, 553 (E.D. Pa.
1999) (distinguishing its ruling from Shirsat on the basis of Pennsylvania’s
amended statute allowing attorneys to be present during an IME).
178 Id.
179 Id.
180 Id. (citing Neumerski v. Califano, 513 F.Supp. 1011, 1017 (E.D. Pa.
1981)).

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counsel.181 Though the holding in Shirsat has been weakened in
the Eastern District, it’s reasoning is still persuasive in other
federal jurisdictions.182 For example, the Northern District of
Georgia adopted the Shirsat reasoning in not allowing an
attorney to be present during the plaintiff’s examination.183
2. Presence of the Patient’s Physician
Interestingly, the same District of Delaware case that
determined a patient’s attorney may not be present during an
IME has held that a patient may bring her own physician to the
IME.184 The court reasoned that an attorney is an adversary in
the litigation, but a physician’s interest is only to ensure that the
patient’s rights are protected in the exam.185 In general, the
federal courts are split on whether to allow physicians to
accompany patients to an IME.186 Courts that allow the patient’s
physician to attend have found that the probable increase of
professionalism by the attendance of a second doctor was more
important than the disruption caused by the presence of that
additional physician.187
The federal courts that do not allow the patient’s physician to
be present find that the presence would be an unnecessary
burden on the independent examiner and would take the focus
away from the examination.188 These courts have stated that a
patient’s physician may attend an IME, if evidence can be shown
that the independent examiner would use improper or harmful
techniques during the physical.189 Though this reasoning is often
cited by courts, no judge has yet to find a case where harmful or
improper techniques will be used as to necessitate the presence of
the patient’s physician.190
181 M.S. v. Cedar Bridge Acad., No. 1:08–CV–2271, 2011 WL 1838885, at *4
(M.D. Pa. May 13, 2011).
182 See, e.g., Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 322 (N.D. Ga.
2000); Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 623 (D.
Kan. 1999); Romano v. II Morrow, Inc., 173 F.R.D. 271, 272 (D. Or. 1997);
Douponce v. Drake, 183 F.R.D. 565, 567 (D. Colo. 1998).
183 Dixie Homecrafters, 92 F.R.D. at 322 (N.D. Ga. 2000).
184 Warrick v. Brode, 46 F.R.D. 427, 428 (D. Del. 1969).
185 Id.
186 Wyatt & Bales, supra note 105, at 111.
187 Id.
188 Id. at 112.
189 Id.
190 Id.

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A Delaware state court has also held that while the party
undergoing the examination would not be allowed to bring an
attorney to the IME, they would be allowed to bring a physician
of their choice.191 The court reasoned that a physician’s presence
could help safeguard the party’s emotional state, and to make
sure the examination did not become an informal discovery
disposition.192
Some states have statutes that give a person subjected to an
IME the right to have an independent physician with them. For
example, Rule 4010(4)(i) of the Pennsylvania Rules of Civil
Procedure allows for a party about to undergo an IME to have
counsel or another representative present during the
examination.193 Arizona’s statute provides that during an IME for
workers related claims, an employee “may have a physician
present at the examination if procured and paid for by
himself.”194 Michigan and Idaho also have statutes that allow a
patient’s physician to be present at the examination.195
3. Presence of Other Patient Representatives
The courts in some states that allow for a person undergoing
an IME to have a physician present have come to different
conclusions on whether a non-physician representative may
attend the examination.196 The Arizona Court of Appeals found
the statute that gives the patient the right to have a physician
present, by the language of the statute, takes away the right of
the patient to have any other person present at the IME.197 The
court clarified that while the claimant only has the right to have
a physician present, an administrative law judge does have the
discretion to allow a third party to attend an IME if they feel the
claimant has shown good cause that the patient needs protection
Rochen v. Huang, 558 A.2d 1108, 1110–11 (Del. Super. Ct. 1988).
Id. at 1110.
193 PA. R. CIV. P. 4010(4)(i).
194 ARIZ. REV. STAT. ANN. § 23–1026(B) (West 2014).
195 See MICH. COMP. LAWS ANN. § 418.385 (West 2014); IDAHO CODE
ANN. § 72–433(2) (West 2014).
196 See Martens v. Indus. Comm’n. of Ariz., 121 P.3d 186, 188 (Ariz. 2005)
(holding that the statute, which gives the patient the right to have a physician
present, takes away the right of the patient to have any other person present at
the IME); see also Feld v. Robert & Charles Beauty Salon, 459 N.W.2d 279, 283,
285 (Mich. 1990).
197 Martens, 121 P.3d at 188.
191
192

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from “annoyance, embarrassment, oppression, or undue burden
or expense.”198 Michigan’s Supreme Court also held that the
statute allowing for a physician to be present barred anyone else
from attending the IME.199 The court found that the statute’s
plain language meant that the complainant did not have the
right to have an attorney present during their IME.200 The court
was not swayed by the argument that it would be unfair not to
have the attorney present, stating that counsel could impeach
the physician conducting the IME during cross-examination.201
However, the Idaho Supreme Court reached the opposite
interpretation of their state’s statute.202 The court stated that the
allowance of a physician by statute did not exclude others from
being present at the IME.203 The concurring judge expanded on
the reasoning stating it is “plain that there are many other
instances in which the presence of a tape recorder or impartial
adviser would not adversely affect the interaction and
communication between an employer and its employees, and
could only serve to enhance the resolution of misunderstandings
and disputes.”204
A New Jersey Superior Court held, without statutory guidance,
that a party had the right to the presence of a third party at an
IME.205 In that case, the insurance carrier wanted to keep the
requesting party from bringing a medical nurse (as well as a
recording device) to an IME, claiming that the plaintiff had not
given a specific reason for the request.206 The court disagreed,
stating that it was the burden of the carrier to provide a reason
as to why a third party (or recording device) should not be
allowed.207
Taken to the extreme, some patients have brought a court
reporter to transcribe the exam. In fact, the Florida Court of
Appeals held that a patient is generally allowed to take a court
Id. at 188.
Feld, 459 N.W.2d at 285.
200 Id. at 285.
201 Id. at 284.
202 Hewson v. Asker’s Thrift Shop, 814 P.2d 424, 427 (Idaho 1991).
203 Id.
204 Id. at 429 (Bistline, J., concurring).
205 Bouhlas v. Wahby, No. L-6095-06, 2006 WL 3345057, at *1–*2 (N.J.
Super. Ct. App. Div. Nov. 17, 2006).
206 Id. at *1.
207 Id. (citing B.D. v. Carley, 704 A.2d 979, 981 (N.J. Super. Ct. App. Div.
1998)).
198
199

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reporter to an exam.208 It is the challenging party’s burden to
show why the examinee should not be entitled to the presence of
a court reporter at an IME.209 California’s Supreme Court held
that a reporter could be present if there was a request from
either party for the reporter.210 The court did not find that justice
required having a certified court reporter present, but required
the presence of a disinterested party to testify as to what
happened at the examination.211 In a New Jersey Superior Court
case, the court held that since this was not a treatment, but a
discovery examination, the party undergoing the IME had a right
to preserve evidence that overrode the physicians’ preference
that there be no recording device during the examination.212
The Eastern District of New York did find good cause for the
allowance of a court reporter to be present at an IME.213 The
plaintiff was not well educated and did not have great control of
the English language.214 The court found that the potential for
the plaintiff not to be able to communicate with his attorneys
about what took place during the IME to be a compelling reason
to have a court reporter present.215
Federal district courts have usually not allowed a third party
to be present at an IME, since it would be a distraction and
would detract from the proceedings.216 However, the courts have
allowed the presence of a family member or close friend if the
plaintiff can show good cause as to why the third party should be
present.217 Examples of good cause include there being a potential
for the IME to be traumatic or if the third party will be able to
deter the physician from using unusual or painful examination
methods.218 The Southern District Federal Court of Florida found
that while a party undergoing an IME may not have counsel at

Thompson v. Awnclean USA, Inc., 849 So.2d 1129, 1131 (Fla. 2003).
Id.
210 Gonzi v. Superior Court of San Francisco, 335 P.2d 97, 99 (Cal. App. Dep’t
Super. Ct.1959).
211 See id. (noting the disadvantage a party would be subject to if only the
medical examiner of the other party were allowed to testify).
212 Carley, 704 A.2d at 981.
213 Di Bari v. Incaica Cia Armadora, S.A., 126 F.R.D. 12, 14 (E.D.N.Y. 1989).
214 Id.
215 Id.
216 Wyatt & Bales, supra note 105, at 113.
217 Id. at 112–13.
218 Id. at 113.
208
209

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the examination, a spouse may attend.219 The court held that the
spouse’s presence would decrease the anxiety of the party and
would not subvert the discovery process of the examination.220
4. Recording or Video Taping
Is it permissible for a claimant to record or videotape an
examination? Rule 35 of the Utah Rules of Civil Procedure
provides that a party that submits to an IME has the right to
tape or video record the procedure, unless doing so would unduly
interfere with the examination.221
Those jurisdictions that do not have rules governing the use of
a recording device during an IME have largely held that there is
a right to record an IME. For instance, courts in Florida have
held that a patient may videotape a medical examination even
over the examiner’s objection.222 The privacy interest at an
independent medical examination is that of the patient’s and not
the doctor’s privacy right.223 Therefore, it is the patient’s decision
to waive their privacy right and allow the exam to be
videotaped.224 The court continued, stating that since it is the
patient’s privacy right, the party ordering the examination has
no right for a third party to be present or to have a recording
device when the patient already has brought one.225 The only way
the objecting party may keep a patient from recording an IME is
if it meets the same two pronged test that is used to decide if an
attorney can be present; case specific facts to why the recording
should not be allowed and proof during an evidentiary hearing
that no other physician in the area would perform the IME with
it being recorded.226 The court did not consider, “a
neuropsychologist’s standards of practice, references to text, and
general statements that [a] third party, such as [a] videographer,
would invalidate the examination results and interfere with [the]
examination,” as case specific reasons not to have a recording at

Davanzo v. Carnival Cruise Lines, No. 14-20153-CIV, 2014 WL 1385729,
at *5 (S.D. Fla. Apr. 9, 2014).
220 Id.
221 UTAH CODE ANN. § 35(a) (West 2014).
222 Prince v. Mallari, 36 So.3d 128, 131 (Fla. Dist. Ct. App. 2010).
223 Id.
224 Id. at 132.
225 Id. at 130.
226 Bacallao v. Dauphin, 963 So.2d 962, 965–66 (Fla. Dist. Ct. App. 2007).
219

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the IME.227 There was also no proof given at the evidentiary
hearing that no other physician would perform an IME while it
was being recorded; thus, the objecting party also failed the
second prong of the test.228 The New Jersey Superior Court held
that during a mental IME, if the party undergoing the
examination requests a recording of the examination, it is the
duty of the non-requesting party to show cause to why the
recording should not be allowed.229 The court held that it was not
the party requesting the IME right “to dictate the terms” of the
examination.230
The Idaho Supreme Court, in the same case in which it decided
that others may accompany a claimant to an IME, also found
that recording an IME is permissible.231 The court noted that the
party objecting to the recording has the burden to prove that it
would be an unreasonable obstruction to the examination.232
Furthermore, due to the invasive nature of the IME, the presence
of a small recording would not be an unreasonable obstruction.233
The opinion did note that they could perceive instances where
the improper use of a recording would be an unreasonable
obstruction, but the court did not specify what those instances
would be.234
Arizona courts have also held that recording an IME does not
turn the procedure into an adversarial process, since a recorder,
“operates silently, asks no questions, and merely records any
audible sounds.”235 A recording device is a reasonable alternative
to having a physician present, which is, as discussed previously,
allowed by state statute.236
Montana’s Supreme Court, however, upheld a lower court’s
decision that a request for an IME to be recorded was “overbroad
and excessively burdensome.”237 The court found that a claim
Id. at 968.
Id. at 967–68.
229 B.D. v. Carley, 704 A.2d 979, 981 (N.J. Super. Ct. App. Div. 1998).
230 Id.
231 Hewson v. Asker’s Thrift Shop, 814 P.2d 424, 427 (Idaho 1991).
232 Id. at 428.
233 Id.
234 Id. at 429.
235 Burton v. Indus. Comm’n of Ariz., 801 P.2d 473, 477 (Ariz. Ct. App. 1990).
236 ARIZ. REV. STAT. ANN. § 23-1026(B) (West 2014); see also id. (noting the
insignificant impact of having a tape recorder during the examination).
237 Hegwood v. Mont. Fourth Judicial Dist. Court, 75 P.3d 308, 310 (Mont.
2003).
227
228

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that the physician performing the examination worked full time
performing IME’s for insurance companies and defense counsel
was not a sufficient reason to justify the recording of an IME.238
The court pointed to another case where it decided the IME
physician was found to be too biased.239 In this case, not only did
the doctor work exclusively for insurance companies and defense
counsel, but he also was well known for his bias against the
medical condition that was the reason for the IME, talked about
himself as a “hired gun”, and was sought out by defense counsel
to refute claims for the syndrome.240 The court held that a
physician who simply performed IME’s for insurance companies
and defense attorneys did not have the same probability of
inconvenience or prejudice as the doctor mentioned, and
therefore, a recording was not needed to protect the petitioner’s
interests.241
The federal district courts generally hold that recording
devices will not be allowed unless good cause for its use is
shown.242 A court will allow the recording of an IME when the
requesting party can show good cause for the recording, based on
the facts of the case.243 For instance, a court in the District of
Columbia held that an unfounded assertion was not a showing of
good cause to allow for the recording of the IME.244 The court also
agreed with the expert performing the IME, in that the IME was
a psychiatric examination, instead of a physical examination, and
the presence of a recording device would disrupt the openness
and spontaneity of the interview.245 The District of Columbia has
held that video recording would be allowed at an IME when the
person undergoing the procedure is a ten-year-old boy who had
allegedly experienced sexual abuse.246 The court found that
allowing a tape recorder would insure that the IME was done in
a proper and tactful manner, and would serve as documentation
Id. at 309–310.
Id. at 311 (citing Simms v. Mont. Eighteenth Judicial Dist. Court, 68 P.3d
678 (Mont. 2003)).
240 Simms, 68 P.3d at 680.
241 Id. at 684–85.
242 Wyatt & Bales, supra note 105, at 114.
243 Id. at 114–15.
244 Abdulwali v. Wash. Metro Area Transit Auth., 193 F.R.D. 10, 12, 14 (D.C.
Cir. 2000).
245 Id.
246 Doe v. D.C., No. Civ.A.03-1789(GKJMF), 2005 WL 3828731, at *1 (D.C.
Cir. Aug. 15, 2005).
238
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of the examination.247 The same jurisdiction, in a different case,
held that the court was not required to issue a protective order
allowing for a recording if the doctor performing the IME
requested the presence of a recording device during the
examination.248
IV. FINANCIAL RESTRICTIONS ON IME DOCTORS
In an attempt to maintain objectivity in independent medical
examinations, at least one jurisdiction has implemented financial
restrictions on what IME doctors may be paid.249 Florida has
instituted fee caps for physicians that will testify in a case.250 The
maximum fee to be paid to the doctor conducting the IME is $200
per hour for a maximum of two hours, which yields a total
maximum payment of $400.251 If the doctor is paid more than
$400, the expert cannot testify in that matter.252 This is an
attempt to reduce the phenomenon of “buying” medical
testimony, where a doctor has a financial incentive to issue a
medical report that is favorable to the party that hired him or
her.253
V. FURTHER TESTING REQUESTED BY AN IME DOCTOR
With the advances in medical technology, physicians place
great reliance on diagnostic studies in arriving at a diagnosis.254
This raises the issue as to what tests an IME doctor can force a
claimant to undergo.255 This issue dates back to the advent of the
x-ray.256 In the early 20th century, the court held that “X-ray is in
common use and that the science and art thereof have been

Id.
Convertino v. U.S. Dep’t of Justice, 669 F. Supp. 2d 8, 11 (D.C. Cir. 2009).
249 Riviera Beach v. Napier, 791 So.2d 1160, 1161 (Fla. Dist. Ct. App. 2001).
250 Id.
251 Id.
252 Id. at 1160, 1161.
253 See Am. Med. Ass’n Council on Ethical & Judicial Affairs, Formal Op. 9.07
(Dec. 2004), available at http://www.ama-assn.org/ama/pub/physicianresources/medical-ethics/code-medical-ethics/opinion907.page (stating that all
physicians must accurately testify and not be influenced by financial
compensation).
254 See Gilbert v. Klar, 228 N.Y.S. 183, 184 (N.Y. App. Div. 1928).
255 Id. (noting that a physician or surgeon assigned by the court may conduct
examinations and procedures as he/she deems proper).
256 Id.
247
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developed to a point where, in the hands of specialists, there is
little or no danger.”257 The ordering of tests, including such things
as blood grouping that requires the drawing of blood with a
needle, is within the court’s purview.258
Courts will consider the amount of pain and suffering a
procedure will inflict on the patient in determining whether to
grant a request to order a test.259 In Cardinal,260 the defendant
sought an order forcing the plaintiff to undergo an x-ray, removal
of food contents from the stomach to permit gastric analysis, and
to undergo a bone marrow biopsy.261 The court granted the
defendant’s request pertaining to the x-ray and the gastric
analysis because the procedures would not cause pain or injury to
the plaintiff.262 The court, however, denied the request for a bone
marrow biopsy because it required an incision that would result
in pain.263
Similarly, New York has found that testing will not be
permitted if it is dangerous or invasive.264 The defense requested
that the plaintiff undergo an urodynamic study to test the
bladder, which was denied.265 The court decided that the risk of
infection and the invasive nature of the procedure were too great
for the plaintiff to be compelled to undergo the test.266
New Jersey balances the potential risk to the plaintiff’s health
and safety against the defendant’s need for the examination and
whether the procedure will put the parties on equal footing
concerning a critical issue in the case.267 The plaintiff brought a
medical malpractice action after a caesarean section, claiming
that permanent damage was done to her bladder and urinary
tract.268 The IME physician requested that the plaintiff undergo
both a cystoscopic and a videotape urodynamic study and the
Id.
See Yee Szet Foo v. Dulles, 18 F.R.D. 237, 239 (S.D.N.Y. 1955).
259 Cardinal v. Univ. of Rochester, 71 N.Y.S.2d 614, 616, 617 (N.Y. Sup. Ct.
1946).
260 Id.
261 Id. at 615.
262 Id. at 616.
263 Id. at 616–17.
264 Bobka v. Mann, 764 N.Y.S.2d 847, 848 (N.Y. App. Div. 2003).
265 Id. at 847–48.
266 Id. at 848.
267 Il Grande v. DiBenedetto, 841 A.2d 974, 977 (N.J. Sup. Ct. App. Div.
2004).
268 Id. at 978.
257
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claimant filed a motion for protective order against the
defendant’s request.269 The plaintiff asserted that undergoing the
procedures would cause great harm and would have limited
probative value.270 Further, the plaintiff stated that the anxiety
and pain the procedures would cause would lead to the need for
general anesthesia, which would increase the risk of the tests,
and the procedure could lead to urinary tract bleeding.271 The
defense responded that the plaintiff only pointed to subjective
complaints for not undergoing the procedure and did not assert
any medical or physical reasons.272
The court first considered the pain and health concerns that
came along with the test.273 It took note that the first time the
plaintiff went through a cystoscopic exam there were
complications and the procedure couldn’t be performed, and the
physician who administered the procedure stated that the
problems in completing the exam were psychological and not
physical.274 It was also noted that the procedure was routine
when a patient had urinary and bladder issues, and that in the
event that it would have to be performed after giving general
anesthesia, the plaintiff had been given general anesthesia six
times with no adverse effects.275 Based on this analysis the court
noted that there were little, if any, actual health risks to the
plaintiff.276 The court next considered whether these procedures
were necessary to put the defendant on equal footing with the
plaintiff.277 The defendant asserted that the procedures
performed by the plaintiff’s physician were inadequate to
determine the cause and extent of the claimant’s injury.278 The
court determined that these facts established the need for the
defense to be allowed to perform the procedures.279
The court remanded the case to be decided on the weighing test

Id. at 979.
Id. at 984.
271 Id.
272 Id.
273 Id.
274 Id. at 978.
275 Id. at 985.
276 See id. (holding that based on the evidence presented, the trial judge could
have concluded that plaintiff’s pain was merely psychogenic).
277 Id. at 984.
278 Id. at 986.
279 Id. at 987.
269
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that it had laid out.280 The balance to be sought was between the
risk/legitimacy of the procedure and the results produced by the
test.281 The court also noted that if the defense could not prove
the need for the procedure, then the plaintiff would not have to
undergo it, no matter how small the risk of pain or detriment to
health.282
A. Ordering an Examinee to Undergo
Sedation for an IME Procedure
To obtain a quality image for many diagnostic scans, the
patient must remain still. Some patients are unwilling or
physically unable to not move for the duration of the scan. In
that case, can the patient be forced to undergo the test if it
means she must be sedated? Typically, the party requesting the
sedation has the burden of establishing that sedation is
permissible.283 Most statutes governing IMEs are silent on this
issue, so the courts must make rulings on a case-by-case basis.284
Sedation and other invasive procedures pose a problem
because they carry a risk to the patient.285 The leading case on
this issue held that a test would not be ordered if it presents the
possibility of danger to the plaintiff’s life or health.286 In
Lefkowitz v. Nassau County Medical Center, the plaintiff alleged
that she became infertile as a result of the defendant’s
negligence.287 The defense requested that the plaintiff undergo a
hysterosalpingogram in order to determine the condition of the
plaintiff’s reproductive organs.288 A hysterosalpingogram is a
fertility test consisting of an x-ray examination of the uterus and
fallopian tubes after injecting a radiated opaque medium.289
Id. at 990.
Id. at 987.
282 Id. at 983.
283 Thomas v. John T. Mather Mem’l Hosp., 556 N.Y.S.2d 720, 721 (N.Y. App.
Div. 1990).
284 See Lefkowitz v. Nassau Cnty. Med. Ctr., 462 N.Y.S.2d 903, 906 (N.Y.
App. Div. 1983) (listing factors to be considered on a case by case basis; the
necessity of the procedure, details of the procedure, frequency with which it has
been done in the past, and physician observations and opinions of harm and
results).
285 Id. at 905–06.
286 Id. at 906.
287 Id. at 904–05.
288 Id. at 905.
289 Id.
280
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The court established a burden-shifting test to determine
whether an invasive procedure could be ordered in a medical
malpractice case.290 If the plaintiff opposes the procedure, he
must establish that the test is dangerous.291 If the plaintiff meets
this burden, it then shifts to the defendant who must establish
that the test is safe.292 This is a case-by-case analysis and
requires the information presented to include “‘the details of the
procedure employed in making it, the frequency with which it
has been done, together with the experience and observations
which have been made by physicians as to pain, harm, or after
results of any nature, occurring to persons so examined.’”293
Several jurisdictions have since adopted the Lefkowitz burdenshifting analysis when ruling on a request for an invasive
procedure.294 Generally, if a procedure is accepted as safe in the
medical community or if the party requesting the procedure can
demonstrate its safety and necessity, the courts will grant the
party’s request to order the procedure.295
VI. OBTAINING THE DOCTOR’S TAX RECORDS
The courts usually deny a request by plaintiffs’ counsel to force
a physician who performs an independent medical examination
to turn over their tax records to show a bias against the
plaintiff.296 The Florida Supreme Court understood that
compelling a doctor to turn over tax records could have a
significant chilling effect on physicians willing to be involved in
an IME, as well as distracting from the trial.297 The court
recognized the need of plaintiffs to show the potential bias of
defense physicians and understood that the percentage of a
physician’s time spent doing IMEs, and how much money is

Id. at 906.
Id.
292 Id.
293 Id. (quoting Cardinal v. Univ. of Rochester, 69 N.Y.S.2d 355, 355 (N.Y.
App. Div. 1947)).
294 See Thomas v. John T. Mather Mem’l Hosp., 556 N.Y.S.2d 720, 721 (App.
Div. 1990); Stasiak v. Ill. Valley Cmty. Hosp., 590 N.E.2d 974, 978 (Ill. App. Ct.
1992).
295 See Pena ex rel. v. Troup, 163 F.R.D. 352, 356 (D. Colo. 1995); Stasiak, 590
N.E.2d at 979; St. Clair v. Hatch, 62 P.3d 382, 384 (Okla. 2002).
296 Elkins v. Syken, 672 So.2d 517, 518 (Fla. 1996).
297 Id. at 519.
290
291

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made during the IMEs, could show the physician’s bias.298 The
court found, however, that any discovery that would prove a
physician’s bias must be balanced against the expert’s right to be
free from overly burdensome and intrusive production.299 The
court stated that compulsion of handing over tax records would
be overly burdensome,300 and it upheld the district court’s
parameters for discovery concerning IME physicians, which
included:
1. The medical expert may be deposed either orally or by written
deposition.
2. The expert may be asked as to the pending case, what he or she
has been hired to do and what the compensation is to be.
3. The expert may be asked what expert work he or she generally
does. Is the work performed for the plaintiffs, defendants, or some
percentage of each?
4. The expert may be asked to give an approximation of the portion
of their professional time or work devoted to service as an expert.
This can be a fair estimate of some reasonable and truthful
component of that work, such as hours expended, or percentage of
income earned from that source, or the approximate number of
IME’s that he or she performs in one year. The expert need not
answer how much money he or she earns as an expert or how much
the expert’s total annual income is.
5. The expert may be required to identify specifically each case in
which he or she has actually testified, whether by deposition or at
trial, going back a reasonable period of time, which is normally
three years. A longer period of time may be inquired into under
some circumstances.
6. The production of the expert’s business records, files, and 1099’s
may be ordered produced only upon the most unusual or
compelling circumstance.
7. The patient’s privacy must be observed.
8. An expert may not be compelled to compile or produce
nonexistent documents.301

The court also agreed with the trial judge’s holding that if a
physician was found to be lying during the deposition then the
moving party could request the physician’s testimony to be
stricken or keep the physician from testifying, as well as levying
Id. at 522.
Id. at 522; Neal v. Nelson, 198 P.3d 819, 827 (Mont. 2008).
300 Elkins, 672 So.2d at 518.
301 Id. at 521; see also State ex rel. Acme Rug Cleaner, Inc. v. Likes, 588
N.W.2d 783, 790 (Neb. 1999) (noting Nebraska’s similar guidelines).
298
299

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any costs for exposing the lie against the offending physician.302
The court noted that the protections given in its opinion were
available to physicians who worked for both the plaintiffs and the
defendants.303 In the case of an evasive or untruthful physician,
the witness’ testimony could be thrown out at the trial court
discretion in light of the proof of the doctor not being truthful and
that any costs incurred by shining a light on the lying expert
could be imposed on the party that called the physician.304 The
court believed that these measures would put trial counsel on
notice to only use reputable witnesses.305
Florida in a subsequent decision held that discovery of the
records concerning the frequency of use and amount paid to an
expert can be sought from a party in a case.306 Allstate, the
defendant, was ordered to show documentation that would note
how many times the carrier used an accident reconstruction
expert’s company, and how much they had paid that company
over the past three years.307 Allstate objected to the request citing
Elkins, but the court distinguished the litigation.308 The court
found that the public policy of not allowing the discovery of
physician’s tax records did not exist when the discovery is
directed at a party to the litigation.309 A party in a proceeding
does not have the same protections as that of the expert witness’
right to privacy which protected their tax records.310 The court
concluded that Allstate had to provide information on how often
it hired a particular expert witness and how much it paid that
expert, because it would be probative to prove the bias of that
witness, where the discovery of an expert’s tax returns had little
probative value.311 After all, the financial connection between the
party and the witness would help the jury determine whether the
opinion of the expert was slanted by their relationship.312
The Kentucky Supreme Court, citing the Florida Supreme
Elkins, 672 So.2d at 521.
Id. at 522.
304 Id. at 521 (citing to the district court’s explanation for seeking financial
information from opposing medical experts).
305 Id. at 519.
306 Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla. 1999).
307 Id. at 994, 997.
308 Id. at 997.
309 Id. at 998.
310 Id. at 997.
311 Id. at 998.
312 Id. at 997–98.
302
303

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Court liberally, also found that a physician could not be forced to
turn over tax records.313 It held that any information that could
show bias could simply be found during the deposition of the
physician.314 The court, however, diverged from Florida and held
that questions concerning the percentage of a physician’s income
and the actual amount of income made from defense physicals
would be allowed in deposition.315 The court stated that, “[t]here
is no need for the expert to produce tax returns if the party
seeking discovery has accurate information regarding the
percentage of income earned as an expert.”316 The court did
recognize that there are circumstances where a physician may be
compelled to turn over their tax returns.317 If during a deposition,
a physician is not being forthcoming or is being untruthful about
the amount of money made from litigation related activities, then
it is the trial courts discretion to allow additional discovery,
including the production of that physician’s tax records.318 The
court then echoed the Florida District Court’s holding that if the
trial court finds that the physician has been evasive or
untruthful, the expert may be barred from testifying and the cost
of discovery to expose the physician will be on the party calling
the physician.319 In closing, the court agreed with the Florida
Supreme Court, holding that its opinion is equally applicable to
both plaintiff and defendant expert witnesses.320
The Pennsylvania Supreme Court has held that judicial
compulsion of a physician’s tax records would be overly intrusive
for the purposes of showing bias.321 The facts showed that the
defense physician had admitted to conducting 200 IMEs in recent
years, which the court stated was proof enough that the
physician was a professional witness, and there was a reasonable
inference that the expert would color his testimony for financial
gain.322 The court held that the least intrusive means to obtain
information that would prove the physician’s bias would be

313
314
315
316
317
318
319
320
321
322

Primm v. Isaac, 127 S.W.3d 630, 639 (Ky. 2004).
Id.
Id. at 637.
Id.
Id.
Id. at 639.
Id.
Id.
Cooper v. Schoffstall, 905 A.2d 482, 498 (Pa. 2006).
Id. at 495.

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written interrogatories during a deposition under Rule 4004 of
the Pennsylvania Rules of Civil Procedure.323 The court’s
guidelines for what information could be gathered during the
deposition largely mirrored those espoused by the Florida
Supreme Court.324 The Pennsylvania court, however, decided that
it would allow questions as to an estimated amount of income a
physician has made during the last three years performing
independent medical examinations.325 The court noted that this
information was found to be overly broad by the Florida Court,
but that when a witness is categorized as a professional witness,
a party can inquire as to the income made by such an expert.326
The court stated that it was not tying the hands of the trial
courts from being able to dispense more intrusive means of
discovery against the physician.327 If there is a strong showing
that the physician is being evasive or untruthful during
disposition, the court can subpoena financial records from that
physician.328 Unlike the Florida Supreme Court, this court did
not expressly state whether it’s holding applied only to defense
medical examiners, or if it was equally applicable to plaintiffs’
physicians.329 There do not appear to be any subsequent
Pennsylvania cases that have answered this question.
The District Court of Maryland, applying Rules 26(b)(1) and (2)
of the Federal Rules of Civil Procedure, also found that there was
no reason for an independent medical examiner to produce their
tax records.330 The court found that, “no intellectually honest
argument can be made that the information sought by plaintiff
regarding Dr. Keehn’s activities as a defense expert witness is
not relevant to bias/prejudice impeachment, and, therefore,
within the scope of discovery permitted by Rule 26(b)(1).”331 It
was noted, however, that the discovery had to be within the scope
of 26(b)(2), which protects an entity from overly burdensome

Id.
Id. at 495; see also Allstate Ins. Co. v. Boecher, 733 So.2d 993, 996 n.5
(Fla. 1999).
325 Cooper, 905 A.2d at 495.
326 Id.; see also Wrobleski v. Nora de Lara, 727 A.2d 930, 938 (Md. 1999).
327 Cooper, 905 A.2d at 487–88 (quoting State ex rel. Creighton v. Jackson,
879 S.W.2d 639, 643 (Mo. 1994)).
328 Id.
329 Id. at 495–96; see also Elkins v. Syken, 672 So.2d 517, 522 (Fla. 1996).
330 Behler v. Hanlon, 199 F.R.D. 553, 561–62 (D. Md. 2001).
331 Id. at 561.
323
324

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discovery requests.332 The court held that the plaintiff’s discovery
requests, including the expert’s tax records, a listing of all
insurance companies the expert has worked for, and the total
income the expert has made over the last five years was
overkill.333 The court found that Rule 26(a)(2)(B) of the Federal
Rules of Civil Procedure, which requires the expert witness to
disclose compensation on the current case, would give sufficient
information for the plaintiff’s attorney to show that expert’s
bias.334 The introduction of an expert’s total income would do
little to provide a correct view of that expert’s bias, but would
greatly increase the chance of confusion or prejudice among the
jury.335 The court then stated that, before the expert’s deposition,
they should gather information to be able to answer the
following:
(1) The percentage of his gross income earned for each of the
preceding five years attributable to performing expert witness
services on behalf of insurance companies, and/or attorneys
defending personal injury cases; (2) a list of cases in which he has
provided such services during the last five years, in sufficient
detail to enable the plaintiff to locate the court file, and/or issue a
subpoena for it. At a minimum, the name, address and telephone
number of the attorney and/or insurance claims representative
that engaged Dr. Keehn will be provided; (3) the name of each
insurance company for which Dr. Keehn has provided services as
an expert witness in personal injury cases, for the preceding ten
years.336

The court did state that, if after the deposition, the plaintiff
can prove that more information is needed for impeachment, the
court may order it, and that if it is found that the expert had not
been forthcoming with the information for the deposition,
appropriate sanctions, including not allowing the expert to testify
at trial, may be imposed.337
The federal courts have consistently held that, while
information concerning the income of an independent medical
examiner is allowed to show bias, there is no need for the
examiner to produce their tax records.338
332
333
334
335
336
337
338

Id.
Id.
Id. at 562.
Id.
Id.
Id. at 562–63.
Id. at 562.

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VII. DISQUALIFYING A SPECIFIC IME DOCTOR
Counsel for claimants have attempted to ban specific types of
physicians from performing medical examinations.339 The
Supreme Court of New Hampshire has held that state law
requiring physicians conducting IMEs to be board certified by a
board recognized by the American Board of Medical Specialties
(ABMS), did not violate the equal protection rights of the State
Constitution.340 The plaintiff was a physician who had been
performing IMEs since 1963 for worker’s compensation claims.341
By way of background, the plaintiff was a licensed orthopedic
surgeon and was certified by the American Board of Neurological
and Orthopedic Surgery and the National Association of
Disability Evaluating Physicians, neither of which are boards
recognized by the ABMS.342 In 1996, the Worker’s Compensation
Law was amended to require all physicians conducting IMEs to
be board certified by a board recognized by the ABMS or to gain
approval from the commissioner to continue performing IMEs.343
The plaintiff qualified for certification by a recognized board, but
instead chose to seek approval from the commissioner, in which
permission was refused.344 The plaintiff then brought suit
claiming that the new worker’s compensation law was
unconstitutional.345 The trial court dismissed the suit and the
plaintiff appealed, claiming the law violated his equal protection
rights.346 The New Hampshire Supreme Court held that there
was no equal protection argument because the plaintiff, and
other physicians able to be board certified by a board that would
be recognized by the ABMS, were not ‘similarly situated’ to those
physicians who were unable to be certified by a board recognized
by the ABMS.347 The court noted that even if the plaintiff was
339 See, e.g., Allstate Soc. Work & Psychological Servs. PLLC v. Utica Mut.
Ins. Co., 869 N.Y.S.2d 303, 306–07 (N.Y. Civ. Ct. 2008), aff’d, 918 N.Y.S.2d 821
(N.Y. App. Term 2011) (arguing that a psychologist was not within the
definition of a “physician” pursuant to applicable state law; therefore, the IME
conducted by a psychologist was improper).
340 Emond v. New Hampshire Dep’t of Labor, 769 A.2d 394, 396–97 (N.H.
Dep’t 2001).
341 Id. at 395.
342 Id.
343 Id. (quoting N.H. REV. STAT. ANN. § 281-A:38(II) (West 2014)).
344 Id. at 396.
345 Id.
346 Id.
347 Id.

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similarly situated with physicians unable to be board certified
there would be no equal protection claim because the new law
only regulated economic rights, which would be reviewed with a
rational basis test.348 Any law under this test would be valid if it
served a legitimate state interest, and it is the burden of the
plaintiff to prove that the law is arbitrary.349 The court agreed
with the trial court that this law was a reasonably way of
protecting the state’s interest of ensuring that only competent
physicians were preforming IMEs, and it did not violate the
physician’s equal protection rights.350
In New York, a court found that any health care provider may
perform an IME and that the examination did not need to be
performed by a physician.351 The defendants (the insurers) denied
the plaintiff’s claim because of his failure to appear at two
scheduled IME.352 In response, the plaintiff stated that the IME
was to be performed by a psychologist and, by the terms of the
insurance agreement, the insured only had an obligation to
appear at medical examinations conducted by a physician.353 The
Mandatory Personal Injury Protection Endorsement, which is a
part of every motor vehicle insurance policy issued in New York,
stated that the insured must submit to an IME performed by a
physician that is acceptable to the insurance company.354 The
term physician was not defined in the endorsement, and the
plaintiff argued that a physician was defined as, “only a person
licensed or otherwise authorized under this article shall practice
medicine or use the title physician.”355 The defendant conceded
that the psychologist was not a physician, but argued that since
the endorsement qualified “medical expense” as an expense from
all professional health services, not just those from a physician,
the legislature intended that IMEs be performed by any health
care professional.356 The court looked to an opinion letter written
by the State Insurance Department that stated “there is no
Id. (citing In re Abbott, 653 A.2d 1113, 1117 (N.H. 1995)).
Id.
350 Id. at 396–97.
351 Allstate Soc. Work & Psychological Servs. PLLC v. Utica Mut. Ins. Co.,
869 N.Y.S.2d 303, 306–07 (N.Y. Civ. Ct. 2008), aff’d, 918 N.Y.S.2d 821 (N.Y.
App. Term 2011).
352 Id. at 305.
353 Id.
354 Id. at 305–07.
355 Id. at 306 (quoting N.Y. EDUC. LAW § 6522 (McKinney 2014)).
356 Id. at 305–06.
348
349

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requirement in the regulation that a claim denial must be based
upon a medical examination conducted by a health provider of
the same specialty area as the treating healthcare provider.”357
The court held that this interpretation implicitly held that an
IME could be performed by either a physician, as defined by the
Education Law and the endorsement, or another health care
provider selected by the provider.358 The trial court, or arbitrator,
had the duty to review the qualifications of the medical
professional performing the IME, and that the other
interpretation would greatly slow down the processing of no fault
claims.359 Therefore, the plaintiff failed to appear at a properly
scheduled IME and, his claims were denied.360
VIII. DISQUALIFYING A PHYSICIAN BASED ON BIAS
Physicians who perform IMEs may find themselves working
with a particular insurance carrier or defense counsel
regularly.361 Can the physician be disqualified from performing
an IME due to the potential bias the physician may have due to
those industry connections? For example, the Supreme Court of
Maine held that disqualifying a physician from an IME for a
conflict of interest does not have to be case specific, but can be
based on any connections that would cause the physician to be
partial.362 The plaintiff was injured while working for the
defendant, and on the request of the employer, Dr. Russell was
appointed to perform the IME.363 Dr. Russell found that the
plaintiff’s inability to work was unrelated to his work injury.364
The plaintiff contended that Dr. Russell had a conflict of interest
and the hearing officer ordered a deposition of the physician to
decide whether there was a problem.365 During his deposition, Dr.
Id. at 306.
Id. at 306–07.
359 Id. at 307.
360 Id.
361 See Robert E. Rains, The Advocate’s Conflicting Obligations Vis-à-vis
Adverse Medical Evidence in Social Security Proceedings, 1995 BYU L. REV. 99,
131 (1995) (explaining that IME’s in social security proceedings are regularly
“performed by physicians who are under contract to the worker’s compensation
insurance carriers and who understand full well the economic interests of the
party who pays the bill”).
362 Laskey v. S.D. Warren Co., 774 A.2d 358, 360–61 (Me. 2001).
363 Id. at 361.
364 Id.
365 Id.
357
358

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Russell admitted that in the past fifty-two weeks he had
performed about ten to twelve IMEs a week, that ninety to
ninety-five percent were section 207 examinations366 (which
control medical examinations of employees367), and that ninetyfive of those IMEs were for insurance companies, employers, or
defense council.368 Dr. Russell also stated that he charged $850
per examinations, made roughly $90,000 at an occupational
health clinic, and was a consultant for five Maine employers.369
The hearing officer decided that due to his connections with the
industry and the amount of money gained from those
connections, the doctor had a conflict of interest and should not
have been appointed as the physician for the IME.370 On appeal,
the court concluded that the hearing officer was within his power
to decide that Dr. Russell had a conflict of interest and was
properly disqualified.371
XI. CONCLUSION
Independent medical exams are an important part of the
claims process. However, many legal issues exist in this setting
from whether the physician can be sued for malpractice to
whether the doctor can be forced to turn over his or her tax
records. Some states have settled case law regarding the duty
owed by, and regulations controlling, IME physicians, while
others do not. Therefore, it is important for counsel to stay
updated regarding the case law in their particular jurisdiction.

Id.
See generally ME. REV. STAT. ANN. tit. 39-A, § 207 (West 2014) (mandating
that after an injury, an employee will submit to an examination by a physician,
surgeon or chiropractor to be selected and paid for by the employer).
368 Laskey, 774 A.2d at 361–62.
369 Id.
370 Id. at 362.
371 Id. at 365.
366
367