Preparing Your Client for a Defense Medical Examination (Rule 4:10 Exam)
As a Virginia trial lawyer, preparing your client for a Defense Medical Examination (DME), also known as a Rule 4:10 examination or an independent medical examination (IME), is a critical component of effectively managing personal injury cases. A DME is often requested by the defense to obtain an opinion regarding the plaintiff’s injuries and medical condition that minimizes or contradicts the plaintiff’s claimed injuries. Understanding the nuances of this process and adequately preparing for it can make a substantial difference in your client’s case. Here are essential tips to help you navigate this examination successfully.
Understanding the Purpose of a Defense Medical Examination
The DME is designed to allow the defense to evaluate the extent and nature of your client’s injuries. Unlike a regular medical examination aimed at treatment, the DME is intended to gather information that might be used to challenge your client’s injury claims. The examining doctor is hired by the defense, which means they will likely look for reasons to minimize the impact of your client’s injuries or even question their validity. Recognizing this context is the first step in preparing effectively.
Preparing Your Client: Pre-Examination Steps
- Educate Your Client
It is essential to educate your client about the purpose and nature of the DME. Explain that the examination is conducted by a physician chosen by the defense and that the results may be used to challenge their claims of injury. Emphasize the importance of being truthful and cooperative during the examination. Your client should understand that the doctor may be looking for information to minimize her claim.
Educate your client on the parameters of the examination as set forth in the Rule 4:10 order. Make sure your client understands what paperwork she can complete and what questions she may answer. Do not assume that the defense doctor has reviewed the limitations of the examinations in the Rule 4:10 order.
- Review Medical History
Review your client’s medical history and the specifics of their injury with them. Ensure they have a clear understanding of their medical condition, treatments received, and any ongoing symptoms. This will help them provide accurate and consistent information during the examination.
- Provide Detailed Instructions
Give your client detailed instructions on what to expect during the DME. This includes:
- Arriving on time for the examination.
- Bringing a form of identification and any necessary documentation.
- Dressing appropriately and comfortably.
- Avoiding unnecessary conversation with the examiner about the case.
- Being honest but concise in their answers.
- Discuss Potential Questions
Prepare your client for the types of questions they may be asked by the examiner. This can include questions about their medical history, the details of the accident, the nature and extent of their injuries, and how their injuries have affected their daily life. Role-playing these questions can be an effective way to prepare your client.
During the Examination: Client Tips
- Be Honest and Accurate
Instruct your client to be honest and accurate in their responses. Exaggerating or downplaying symptoms can harm their credibility and potentially weaken their case.
- Stay Calm and Composed
Remind your client to stay calm and composed during the examination. If they become anxious or defensive, it may be misinterpreted by the examiner.
- Avoid Volunteering Information
Advise your client to answer the defense doctor’s questions directly and concisely, without volunteering additional information. This helps prevent unnecessary disclosures that could be used against them.
- Document Details of the Examination
Instruct your client to memorialize details of the examination such as the time they arrived, how long they waited for the defense doctor to enter the exam room, how long did the examination take place, how many questions were asked, and who else was present during the examination. This information may be helpful to cross-examine the defense doctor for inaccuracies in her report.
Post-Examination: Follow-Up Steps
- Debrief Your Client
After the examination, debrief your client to discuss their experience and any concerns they may have. Obtain their account of what occurred during the examination, including the questions asked and the tests performed.
Ask your client to write down what happened during the examination, including the start and end times of the examination.
- Review the Examiner’s Report
Once the examiner’s report is available, review it carefully with your client. Compare the report with your client’s medical records and their account of the examination. If there are any discrepancies or inaccuracies, consider consulting with a medical expert to address these issues.
- Prepare for Cross-Examination
Prepare to challenge the examiner’s findings during cross-examination. This can involve questioning the examiner’s qualifications, bias, and methodology. Having a medical expert review the DME report and provide testimony can be invaluable in this regard.
Conclusion
Preparing your client for a DME is a critical step in managing a personal injury case. By educating your client, providing detailed instructions, and carefully monitoring the examination process, you can help ensure that the DME does not adversely affect your client’s case. By following these guidelines, you can effectively prepare your client for a DME to protect their rights and interests.
Bio:
Kelly B. Martin is a partner at Latham & Martin in Richmond. Kelly exclusively represents the injured in personal injury cases throughout Virginia. His practice covers auto, trucking, premises, and wrongful death cases. Kelly serves on the VTLA Board of Governors and is involved in several committees with the VTLA and the Richmond Bar Association. Outside of the office, you can find Kelly cheering his children at their sporting events or rooting for the James Madison University football team.
This article was originally published in the Virginia Trial Lawyers Association digital magazine The Journal in Volume 30, Number 3.
