If you are in a car accident that resulted in injuries and have decided to retain a lawyer, they will begin an action on your behalf to recover damages intended to compensate you for your injuries. Your lawyer will ask for medical reports from your doctor, and possibly from specialist doctors. To establish the extent of your injuries, the defendants (the opposing side) also have the right to have a doctor of their choice examine you. This examination is known as a “defence medical examination” or DME for short. These doctors will prepare an expert report in which they will give their opinion on the extent and severity of your injuries, as well as testify in court for the opposition if your case comes to a trial.
Sometimes those undergoing defence medical examinations worry that the examining doctor will be biased and discount their injuries to help make a case for the defendants. Even though DME doctors are hired by the defence, they are bound by a code of ethics that requires them to be honest and objective in their medical assessments. At CAM LLP, we meet with our clients to discuss in detail what they can anticipate and the do’s and don’ts for the defence medical examination. Some of these do’s and don’ts include:
DO: Be open, be honest, and be yourself.
An defence medical examination can be an intimidating experience. You may feel nervous about explaining the extent of your injuries to the examining doctor. It is important that you try to relax so that the doctor can get a proper assessment and accurately record your symptoms in his or her report. Also, we always recommend that you do not discuss your claim with the DME doctor. That means not revealing the potential damage award, as well as any settlement negotiations that have taken place. Above all, be courteous and respectful to the examining doctor. They are there to help provide an objective assessment of your injuries and their impact.
DON’T: Be late!
As a matter of common courtesy, arrive 15 minutes early for your appointment. It is not uncommon for examining doctors to note in their report if you arrive late for the appointment.
DO: Make your best effort on all tests given by the examining doctor.
The examining doctor may ask you to complete certain tests, such as a test for muscle strength or tests to assess your indications of pain. Try your best to complete these tests to avoid the accusation that you are exaggerating your injuries. That does not mean you should perform a requested task if it causes pain. Just be aware that the examining doctor will be closely watching all of your movements from the moment you enter the examination room, and perhaps their office. They may take note of things like how you mount the examination table, or take your shoes or clothes off, as part of their assessment of the extent of your injuries. This is not uncommon. If you experience pain while performing these tests or in the course of the examination, make sure you let the examining doctor know.
DON’T: Exaggerate your injuries.
If the examining doctor feels that you are exaggerating your injuries at all, they may testify that your description of your symptoms is not trustworthy. Give an accurate account of your injuries to the examining doctor, without embellishment, to avoid this downfall.
DO: Make your best effort on all tests given by the examining doctor.
The examining doctor may ask you to complete certain tests, such as a test for muscle strength or tests to assess your indications of pain. Try your best to complete these tests to avoid the accusation that you are exaggerating your injuries. That does not mean you should perform a requested task if it causes pain. Just be aware that the examining doctor will be closely watching all of your movements from the moment you enter the examination room, and perhaps their office. They may take note of things like how you mount the examination table, or take your shoes or clothes off, as part of their assessment of the extent of your injuries. This is not uncommon. If you experience pain while performing these tests or in the course of the examination, make sure you let the examining doctor know.
DO: Take a friend or family member with you to the examination.
Ask a friend or family member to accompany you to the examination if you are having any anxiety about the process. It is rare, but in a worst-case scenario, your friend or family member can give evidence on your behalf as to what exactly took place in the examining room. It also helps to have your friend or family member take notes of what is happening in the examination, as you will likely be anxious and forget much of the details after the examination are over. These notes will be helpful for you to refresh your memory in the future. Alberta case law also has established that in many, but not all, cases you can have the examination videotaped.
DO: After you leave the examination room, find a quiet place and set down your own detailed notes.
In your notes make an entry of the time that you arrived at the doctor’s office, the time that you were admitted in to see the doctor, the approximate length of the examination, and the time that you left the doctor’s office. If you establish, by detailed notes made shortly after the examination, that you were only in the examining room for a brief period of time, this may have an impact on the weight a court will give to the contents of the DME report. An DME is often a one-time occurrence and provides only a snapshot of how an injured person was doing on a given day. We think that health care professionals who have been continuously involved in a client’s recovery process provide better evidence of a client’s condition. If a DME doctor does not take sufficient time to examine you, your lawyer will want to know, so that he or she can make sure they are in a position to provide the court (or mediator) with the best evidence on the issue of your injuries.
DO: Be careful of your demeanour when leaving the doctor’s office.
The examining doctor may be watching your demeanour as you leave the doctor’s office. They may even walk out into the parking lot, to assess whether you are exaggerating your injuries. This is quite a common thing for examining doctors to do.
DO: Be very careful about the paperwork you fill out at the examining doctor’s office.
It is not unusual for the examining doctor to ask you to describe the accident, an overview of your injuries, and a review of your medical treatment to date. Be very careful in filling out this paperwork. Often examining doctors are used to dealing with defendant insurance companies and lawyers, and may be very well schooled in litigation techniques. Be aware that your basic medical information will already have been sent to the examining doctor by the defendant’s lawyer, and the examining doctor will have reviewed your records as well as any x-rays, scans, etc. beforehand. It is best not to provide cross-examination fodder by completing additional paperwork. An Alberta case holds, however, that you must sign a consent form to allow the DME doctor to touch you in the examination.
DON’T: Answer a question if you don’t fully understand it.
The examining doctor will ask you questions about your injury and your general lifestyle. Common questions include whether you drink, smoke, use drugs, overeat, etc. The doctor is trying to assess whether these lifestyle factors have a bearing on your injury, to the extent that they minimize the damages that are due to you. The doctor may also ask questions about the history of the accident and any previous injuries or accidents you have had. If you were employed at the time of the accident, you will be asked about the physical demands of your job like lifting, bending, carrying weight, and standing or sitting for extended periods. Take your time. Make sure you clearly understand the question before answering. It is ok to ask the doctor to explain what he or she means if you are not sure you understand their question. It is human nature to try to be helpful, especially to someone with professional authority. However, you are not required to make guesses or offer possibilities as answers to questions an examining doctor asks you. If you don’t know the answer, it is fine, to say, “I don’t know.”
Your lawyer at CAM LLP will always personally prepare you for your DME before it happens, but we want to ensure that you have some background on what to expect. You can find more details about medical assessments here. If you or a loved one has been injured and you would like to discuss your situation, please CONTACT the friendly, helpful and knowledgeable lawyers at CAM LLP for a free consultation.
Note: This post was originally published in November 2017 and has since been updated to include relevant information
