Protecting Plaintiffs’ Interests in a Court-Ordered Medical Exam
March 4th, 2015
Getting our client’s personal injury case ready for trial may require that the client attend a Rule 35 exam with a defense-hired expert to demonstrate the severity of our client’s injuries. The Rule 35 exam – sometimes called the IME, or independent medical examination – is a defense tool. Fortunately Rhode Island law provides some protections to plaintiffs who must attend these exams.
Rule 35 Court-Ordered Examinations
Commonly in negligence cases, the insurance company will concede that the defendant driver was responsible for the accident but dispute how much the plaintiff may recover for his or her injuries. If the insurer disputes a plaintiff’s physical or mental injuries, it can petition the court to for its expert to examine the plaintiff. R.I. Super. Ct. Rule 35. For good cause shown the court will order the exam, but in its discretion limit the testing, diagnoses, or medical history necessary for understanding the extent of injury. By law, the Rule 35 expert must act independently and objectively. But in reality, an expert who is hired and paid by the insurer is neither independent nor objective. And the insurer has every incentive to hire an expert who has a history of providing opinions favorable to the defense.
Protections for Plaintiffs
Because these examinations require the plaintiff to answer in-depth, personal questions in an unfamiliar environment, the Rhode Island Supreme Court recently affirmed that plaintiffs may have a representative present. In Plante v. Stack, Kristopher Plante brought a negligence claim to recover for his severe mental and physical injuries resulting from a terrible head-on collision caused by an intoxicated Mr. Stack. Mr. Plante, who at the time was an undergraduate student at the University of Rhode Island, suffered orthopedic and head injuries. The defendant’s insurer agreed that Mr. Stack was at fault but disputed Mr. Plante’s injuries and requested a Rule 35 exam. The Court affirmed that Mr. Plante could have a third party representative, such as a nurse paralegal, at the exam, even though his attorney may not attend.
A nurse paralegal who is familiar with the plaintiff’s case can help protect the plaintiff’s interests. The nurse paralegal can report to the attorneys about what occurred during the exam. Also the mere presence of a person representing the plaintiff helps encourage a more objective, reasonable exam. Both sides are entitled to a copy of the expert’s report and findings.
Our job as passionate personal injury attorneys is to help protect our clients and their interests through every step of their case against the insurer. Contact the team at Bottaro Law today to learn about your rights and protections if you were injured in an accident.