Author: Richard H. Adler

"The business of insurance is one affected by the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honest and equity in all insurance matters. Upon the insurer, the insured, the providers, and their representatives rest the duty of preserve inviolate the integrity of insurance." RCW 48.01.030

"Act in good faith, abstain from deception and practice honesty and equity"? This is whatWashington State insurance law and administrative codes require. What about independent medical examinations(IMEs)? Insurance companies tell their insured (your patient) the insurance medical examination will be conducted by an "independent" examiner. They further claim the evaluation is being sought because they are concerned about their insured and want to make sure the treatment being given is effective to resolve their injuries. In reality, the IME is an "insurance medical examination" or "involuntary medical examination" whose purpose stands in sharp contradiction to the insurance companies' statutory duty of good faith.

The insurer does more than "request" their injured insured attend an IME. They "compel" the examination under terms of the insurance policy with their insured which typically states:

"A person making a claim shall be examined by any physician we choose and paid by us as often as we reasonably may require."

In order to continue receiving personal injury protection (PIP) benefits, the injured person must comply with the terms and conditions of their insurance contract. The patient is placed in a "lose-lose" position. If they attend the IME, treatment for their personal injuries from the auto collision will predictably be terminated. If they do not attend the IME, PIP benefits will terminate because of the insured's failure to meet their obligation to cooperate with the insurance company. The insurer can hold treatment bills "hostage" pending receipt of the IME report. This often adversely impacts the patient's ability to follow through with the treatment recommendations necessary to recovery from their traumatic injuries.

Time and again the insurer's true purpose in requesting an IME is revealed by their selection of an examiner from the small group of doctors who repeatedly conclude further treatment is not necessary. The true purpose of the insurance examination is cost containment, a purposeful effort to reduce the amount of benefits paid out for care under the PIP policy. Where the insurer sets up the examination, hand-picks the examiner and pays the examiner or agency a significant fee, a negative outcome for the patient is often a given. In essence, the insurer gets what it pays for.

The PIP IME can have a toxic effect on many aspects of the insured's personal injury claim. The examiners report will be used to challenge the reasonableness and necessity of care, and/or can be used to challenge whether the treatment is related to the automobile accident. The IME report can unsettle a patient's confidence in their own doctor. The IME report often resurfaces during settlement negotiations with the liability insurer for the at fault driver or the underinsured motorist insurer creating obstacles to a fair and reasonable settlement without the cost and burden of litigation.

Another problem with the insurance medical examination is how often disagreements arise between what the insured and the insurance doctor contend occurred during the examination. Experienced personal injury attorneys representing those injured in automobile accidents, pedestrian or bicycle motor vehicle collisions, should be uncomfortable with the prospect of a swearing contest at an arbitration or trial between an unsophisticated patient and a trained care professional that routinely performs IMEs for insurance companies.

Despite the obstacles presented to a patient and his/her doctor by a pending IME, the patient is not powerless. There are actions to take which can help level the playing field and restore good faith and honesty to the IME process. They require consideration of the following pointers:

1. Given the hostile and adversarial attitude of insurers, it is important for healthcare professionals to understand the importance of obtaining a patient centered second opinion evaluation for treatment purposes. Second opinions ordered by the treating doctor provide a second knowledgeable source of insight into the patient's current condition, diagnosis, causation and treatment required. They also add substantial documentary evidence the PIP examiners must take in account when arriving at their own opinions, and which can be used to rebut the IME report if the examiner does not. These are second opinion evaluations, not IMEs. A referral for a second opinion evaluation by a doctor such as a physical medicine rehabilitation specialist (physiatrist) or a DABCO for treatment purposes needs to be made fairly early in the treatment phase, and before the insurer requests an IME. The cost of the treating second opinion evaluation can be submitted by the second opinion doctor to PIP for payment just like any other care expense, and are not subject to pre-approval by the insurance company.
2. The healthcare provider needs to understand they have no right to confront, challenge, or change the insurer's decision to require the patient to attend an IME. Only the patient, through his/her attorney, has standing to intervene and effectively challenge the insurer's need for the examination, selection of the examiner and parameters of the evaluation. From a legal point of view, more can be done to protect a patient's legal rights and access to healthcare prior to an IME occurring than after it. Patients should be encouraged to seek a legal consultation with an experienced personal injury attorney before attending the IME as it is a costly and time consuming process to reopen PIP benefits once the IME has cut off care and the claim has been closed.
3. Effective personal injury attorneys will insist the insurer follow the dictates of WAC 254-30-395 which require an insurer to select an examiner "currently licensed, certified, or registered to practice in the same health field or specialty as the healthcare professional that treated the insured." The intent of this 1997 code provision is to safeguard the patient/insured's choice of healthcare provider. For example, a PIP insurer may no longer request a medical doctor evaluate chiropractic care.
4. The gold standard for attorneys representing individuals subjected to an IME requires the attorney exercise their right to be present during the IME. An attorney's presence at the IME ensures the procedures, tests, and results are reported accurately and the examination does not become an oral examination of the insured. Competent personal injury attorneys will audiotape the examination to eliminate the swearing contest between the patient and the examiner as to what was and was not said during the examination.
5. When an IME takes place and an adverse opinion is provided by the examiner, it is important for the treating doctor to obtain a copy of report. The report is easily obtained through your patient as he/she has a legal right to a copy of the report under WAC 284-30-395. The report must be requested from the insurance company not the IME doctor. Once the IME report is in hand it must be carefully read and responded to by the treating doctor. This response will rebut erroneous, inconsistent or incomplete findings and conclusions, provide the findings which support ongoing injury requiring care, states the ongoing relationship of the injuries/conditions to the traumatic incident and what additional care is required to move the patient toward MMI.

Together, doctors and lawyers form the first line of defense between the injured person and debilitating physical injury, financial loss, and the cost containment practices of the insurance companies. The medical/legal connection is natural and necessary today more than ever. The interests of the patient are best served when the healthcare and legal communities work together in the best interests of the injured person. This is the only way to make insurance companies take seriously their duty to "Act in good faith, abstain from deception and practice honesty and equity".

While every patient may not ultimately need to hire an elite personal injury attorney following a traumatic injury, every patient needs and will benefit from a legal consultation with one. It is our honor and privilege at Adler Giersch PS to provide knowledgeable, compassionate, highly rated representation to your traumatically injured patients through our offices in Seattle, Bellevue, Everett and Kent.