Form of the day: Defense Medical Exam Agreement

Photo:  Clip from the Preparing your Client for a DME Exam DVD 2012 Trial Guides.  Co-Produced by Guenther Prod and Yours Truly.  Patient - my friend, lawyer Ed Moore.  Doctor - my friend, lawyer and chiropractor Aaron DeShaw. 

Some of the richest doctors no longer practice medicine.  Instead they make up to half a million dollars a year, working for insurance companies.  Their assignment:  examine injured plaintiffs with a jaundiced eye.  Then proclaim they should be cured in 60 to 90 days.  Sometimes a little longer.

About five years ago, there was a mean retired neurosurgeon who said a  mother was paralyzed and in a wheelchair because she made up the injury in her mind.  He called it "hysterical paralysis."   Made for a good defense.  Of course in reality, she's still paralyzed today.  Apparently the hysteria hasn't ended.

Defense exams should not always be agreed to.  "Good cause" must first be shown by the defense.  Schlangenhauf v. Holder, 379 U.S. 104 (1964).

Justice Tom Chamber’s  concurrence In re Detention of Williams, 147 Wn.2d 476 (2002), lays out the constitutional concerns but also talks about the realities:

Aside from the constitutional concerns, an examination by an expert hired by the opposition is rarely a desirable experience. Examinations can be financially, physically, and emotionally demanding. Parties are often required to take considerable time away from work or other activities, to travel inconvenient distances to the expert's office, and to wait significant amounts of time to be subjected to questions and questionnaires posed by experts suspicious of their answers and motives. Examinations often involve unwanted touching, poking, and twisting, causing discomfort and indignity. All done pursuant to a written order of a judge vested with the authority of the State. Such extreme exercise of judicial power should only happen upon a most stringent showing of necessity. Id. at 498.

When I started practicing, I worked for Justice Chambers who was then simply "Tom".  He routinely made me go down to the courthouse and fight against all defense medical exam requests.  I usually lost.  But almost always succeeded in having the court impose conditions.

Over the years my list of conditions has changed as the examiners have become even more sophisticated, jaded and mean (the truth will set you free).  Defense lawyers would rather not have to bring motions and so they tend to agree with this extremely, reasonable, nice, kind and proper agreement.

Here is the standard stipulation letter for a defense medical exam: DME Ltr form k3.pdf