Author: Richard H. Adler

There are two situations in which a personal injury victim may be required to undergo a physical or mental examination by a non-treating health care provider. First, the victim's own insurer may require him/her to submit to an examination with doctor(s) selected by the insurance company. The insurance company can compel this because when a person submits a claim for medical benefits, one of the conditions of the insurance policy typically states:

The insured will submit to physical examinations by physicians we choose, at our expense, whenever we reasonably request.

An injured person may also be required to submit to a physical or mental examination after a lawsuit has been filed upon demand of a defendant (actually, the defendant's liability insurer). Civil Rule 35(a) states:

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 physician ...

An examination by a non-treating health care provider has been termed "IME," otherwise known as an Independent Medical Examination or Insurance Medical Examination.

Whether an insurer requests an IME of their own policyholder under the PIP portion of the insurance contract or an insurer representing the at-fault party requests an IME pursuant to Civil Rule 35, the plaintiff has a right to have his/her attorney present. The right to have counsel present during the IME is based on a recognition that the IME is adversarial in nature. A number of considerations have persuaded courts to favor the right of the plaintiff to have counsel present, including:

1. The attorney is able to prevent the examiner from making inquires into matters not reasonably related to the legitimate scope of the medical examination. The attorney's presence will guard against the doctor taking a legal deposition as to the facts at issue in the litigation. A lay person should not be expected to evaluate the appropriateness of every question asked by an examiner at his/her peril.


2. Justice requires that the insurance company's examination not be conducted "in secret;" the right to compel a physical examination in secret and without the presence of counsel would be "inconsistent with the inalienable rights of the individual" and an open court process.


3. There is a recognition that the insurance company is requiring the examination, selecting the doctor, and paying a significant fee for such an examination. As a result, the doctor hired by the insurance company has no patient/physician relationship with the examinee. The doctor is accountable not to the victim, but to the insurance company who engaged him/her.


4. The attorney can observe the examination and know what questions were asked, what tests were performed, and what information was recorded. Of equal importance, the attorney will know what questions were not asked, what tests were not performed, and what information was not recorded.


5. The attorney's presence can help ensure that the IME examiner's attitude, tone, and behavior remain professional.


6. The attorney's presence can assure that the IME is as minimally invasive as possible, as well as consistent with the nature of the case and medical issues involved.

In the Washington case of Tietjen v. Department of Labor & Industries, 13 Wn.App 86, 534 P.2d 151 (1975), the claimant was ordered to have a psychiatric examination pursuant to Civil Rule 35. The claimant conditioned his participation on the presence of his spouse during the exam. The court ruled that a family member is not allowed at the IME, but that the claimant was entitled to have his attorney present. The court, in addressing the issue of the attorney's presence during the examination, relied upon the California Supreme Court's decision in Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896 (1955), holding:

The doctor should, of course, be free to ask such questions as may be necessary to enable him to formulate an intelligent opinion regarding the nature and extent of the plaintiff's injuries, but he should not be allowed to make inquires into matters not reasonably related to the legitimate scope of the examination. (Citations omitted.) Whenever a doctor selected by the defendant conducts a physical examination of the plaintiff, there is a possibility that improper questions may be asked, and a lay person should not be expected to evaluate the propriety of every question at his peril ... An attorney ensures that the procedure, tests, and results are reported accurately and that the examination does not become the taking of a deposition as to the facts and issues.

It is important to note that the interests of the examiner performing the IME are also served by having the plaintiff's attorney present. The attorney can help to reassure his/her client as to the regularity of the procedure and testing, and prevent misinterpretation of the examiner's intentions and actions.

Presently, the Washington Supreme Court is reviewing proposed amendments to Civil Rule 35, which would incorporate the earlier discussed court ruling of Tietjen v. Department of Labor & Industries, 13 Wn.App 86 (1975), into the Superior Court Civil Rules as "an explicit right." Additionally, the proposed amendment to Civil Rule 35 would allow for audio-tape recording of the examination "if done in an unobtrusive manner."

It is the policy of Adler Giersch, P.S., to have a representative from our office accompany our clients/your patients to any IME that is required, either by their own insurance company or pursuant to Civil Rule 35. Moreover, prior to the IME, we will advise our client of the nature and scope of the examination, answer questions, and provide a sense of security and comfort. We see our role at the IME as one of protecting our client's rights, observing the examination, ensuring that the IME is conducted professionally, and assisting with the collection of all information necessary to conduct a truly "independent" examination.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law

¹ WE ARE GRATEFUL FOR THE WORK OF CONTRIBUTING AUTHOR, PATRICE RONEY, LEGAL ADMINISTRATOR FOR ADLER GIERSCH, P.S.
² Prior to a lawsuit being filed, the at-fault party does not have a right to have the personal injury victim submit to a physical or mental examination.