“The attorney also thanked me for my honesty and presence in the courtroom. He said that the jury believed me, not the IME doctor.”
Attending IMEs Allows Me to Stretch as a Certified Legal Nurse Consultant
by Marie Wendle, RN, BS, CCRN, CLNC
When a CLNC® consultant is asked to attend an independent medical exam (IME), she serves as observer, documenter, patient/client representative and expert. With enough legal-nurse consulting experience and nursing knowledge, you may include this CLNC service in your business.
I know some CLNC consultants do not like to testify, but offering this service to your attorney-clients does lead to that possibility. You become the witness for that IME. If you do not know what to look for in an orthopedic or neurologic exam, the most common types of exams in personal injury cases, you should not offer this service.
I have attended at least 100 IMEs. One of my most interesting cases involved attending an IME by a doctor of osteopathy. The insurance company defense counsel requested that the patient, Mr. P., be examined by an independent doctor of their choice because they questioned the diagnoses by the client’s treating physicians.
Eight years earlier Mr. P., a 48-year-old general contractor, was involved in a roll-over MVA. He suffered a mild brain injury when he hit his head on the inside top of the car several times. His treatment included retraining and therapy at a reputable local pain clinic and rehabilitation center. According to his treating physicians, Mr. P. was fixed and stable with permanent impairment from the MVA. He had tried to re-enter the workforce several times in positions other than his original job, but had failed due to residual cognitive impairment.
The CLNC® Consultant’s Role in IMEs
Most states allow the client to have a person accompany them to the exam. Attorneys are learning, through our educational efforts, that a CLNC consultant is the best person to accompany their clients because CLNC consultants are uniquely qualified to serve as rebuttal witnesses in court, if needed.
Once I’m assigned an IME, my first task is to educate the client on the IME process, including my role in that process. I usually do this with a phone call the day before the exam and again when I meet the client at the examining doctor’s office.
I instruct the client to be truthful and simply answer the doctor’s questions. I tell the client to do the physical tests as long as it does not aggravate or exacerbate existing complaints. I also tell the client that I will be silent during the exam. He may not look to me for answers or help in any way, since that will be construed as interfering with the exam resulting in a request for me to leave.
I time the exam from the moment I walk into the exam office. I observe everything that occurs while we’re there, documenting all conversations and actions with written notes that I will use in writing up my summary for my attorney-client. I watch the physical exam to assess whether the doctor performs the right tests and does them correctly. The courts in my state also allow audio recording, so I record the entire exam. Within a week of the exam I send my attorney-client the original and only audio recording along with my written report.
Be Ready to Take the Stand and Stand Up for the Truth
Several weeks after I sent my report on Mr. P.’s IME to my attorney-client, he called asking me to review the independent medical examiner’s report, given to him by the defense attorney. After reviewing that report, I was not sure if I had attended the same exam. The discrepancies were astonishing. I reported these discrepancies verbally, as the attorney had requested. He asked if I was ready to go to court as a rebuttal witness.
Although I immediately agreed to serve as a witness and I knew I was ready, I was also scared. I had never actually had to testify before.
My attorney-client prepared me for my court appearance in two separate phone calls the week before my court date. We discussed what he would ask me in court and what the defense might ask.
The IME physician testified the day before I did. She denied that any of the findings in my report were apparent on the day of the exam.
When my day in court arrived, I wore my “Vickie suit.” I was not nervous. I had reviewed my notes, my CV and the IME doctor’s report. I really was ready.
I was called into the courtroom, took the stand and was sworn in. I looked at the jury. They looked like regular people. My attorney-client asked me questions about my CV, nursing experience, qualifications to observe this exam and what I had observed. He then asked for my observations about the client. I noted Mr. P.’s decreased cognitive function, shortened memory and lack of concentration and focus. For example, he asked the doctor to repeat nearly every question, then stuttered and hesitated in his responses. These observations were all reflected in my report.
After my attorney-client finished questioning me, the defense attorney said he had no further questions. I think he thought I was not a threat to his case. My attorney-client later told me the defense attorney had seemed confident of winning.
After my testimony, I was excused and sent out of the courtroom. I was done. I felt good. I had testified in court for the first time, and I had survived.
Honesty Wins the Case
Two days later my attorney-client called to inform me that a verdict had been handed down. Prior to trial he had asked for $500,000 for Mr. P.’s damages. The jury came back from deliberations with a plaintiff verdict and a damage award of $1.3 million dollars.
Mr. P. was elated and he even called me later to thank me for my part in his case.
The attorney also thanked me for my honesty and presence in the courtroom. He said that the jury believed me, not the IME doctor. Afterward, a member of the jury told my attorney-client she would never go to an IME without a Certified Legal Nurse Consultant. That was all I needed to hear.
Best Practices for IMEs
- Always be professional. Maintain the high standards of the CLNC consultant.
- Remember, you are the expert in this case. Be sure you have the knowledge and experience necessary to go to court as a rebuttal witness, if needed.
- Know what your attorney expects of you and his client before you go to the exam. Talk openly about the attorney’s rules and expectations.
- Know the rules of your state for observing IMEs and abide by those rules. If you don’t know your state’s rules, ask your attorney-client to educate you.
- Do not talk to the IME examining physician before or after the exam. Do not discuss the client or the attorneys. Do not even make a casual comment like “Good exam.” This could be reflected in the IME physician’s report and come back to haunt you.
- Know when to intercede or interrupt an IME for the client. Know the code of ethics the examining doctor must follow. Call him on unworthy conduct and leave with your client if indicated.
- Always phone your attorney-client with any unanticipated questions or concerns that arise during the exam. Do not proceed with any change in plans without your attorney-client’s consent.
- Be sure your report is accurate. Take good notes. These could also end up in court.
I learn more every time I attend an IME. Stay open to learning and you’ll make this CLNC service a profitable part of your business.
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