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Legal Scaleswis-injury.com is your source for information on personal injury, liability, insurance and compensation. There has been a traumatic event, usually an accident, medical bills are mounting, you or your loved one are no longer the same as they were before. Is there compensation available?


by Attorney Gordon S. Johnson, Jr.

They call it an "IME" for Independent Medical Exam. Those words get most plaintiff's lawyers as irate as the word "mild" when talking about brain injury, gets me. It is not an independent exam, not a second opinion. It is a chance for an insurance company hired gun to find some excuse to deny your benefits, or provide support for a legal defense to paying a claim.

So be forewarned. You are going into the enemy camp.

A word about insurance companies. I am stating the obvious, but this is so often forgotten, it just amazes me. Insurance companies make a profit by not paying claims, medical bills.

Insurance is a gamble, both for you and the company. Insurance adjusters are engaged in a high stakes poker game. When you buy insurance, you are in essense betting against your own good fortune. If you have good fortune, both you and the insurance company wins. If you have bad fortune, the insurance company and you both should loose, you the bad fortune, they the cost of your bills and or damages. Now the point spread, the odds, (in other words what you are charged in premiums) is determined by these well educated oddsmakers, called actuaries. These folks are called bean counters. The bean counters are honest and bright people who determine what the actual economic cost will be to insure a large number of people, similarly situated against certain risks. For example, they determine there is a greater risk of pregnancy among women 20-40 and charge such women more for medical insurance because of that.

Well all insurance companies listen to their actuaries, pretty much the same in setting their rates. And if their bean counters are right, and they typically are, the insurance company will make a fair profit for spreading the risk of our bad luck. And that would be fine.

But insurance companies are not run by bean counters. They are run by business men and women, whose advancement and net worth, are not going to be built on a fair profit. To move up, to make their company more profitable, they must find a way for their department, for claims, for the company as a whole, to do better than the bean counters figured.

The way to do this is to minimize claims and deny benefits. Now there are laws and there are regulators, so there is a limit as to how far the "adjusters", the primary people who decide what checks the insurance company will write, will go. (The movie "Rainmaker" is about the severe consequences for the insured and the company if they go too far.) But the incentive is to push cases as close to the limit as the adjusters dare. The less they pay, the more successful the adjuster and the company are.

Other than regulators wrath (a factor in only the most extreme cases),where does the check and balance come into the system? The market place economists will argue that if an insurance company doesn't pay claims, the word will get out and they will lose business. Unfortunately, this doesn't work very well because all of the advertising about "the good hands people" and solid as a rock, reaches more ears than the failure to pay claims. Even experienced personal injury lawyers, often can't tell you all of the companies that have bad claims history.

The other check on the system is legal action. Why do the insurance companies care? Well some don't, as the longer they keep your money, the longer they can make money off of it. But lawsuits cost money, for both sides. The insurance company must then hire an attorney, pay for IME's, court costs and frankly, have to pay more than if they had an unrepresented claimant. The experienced adjuster, one whose raw ambition has been seasoned by years of costly miscalculations, has learned not to push the claimant towards a lawyer.

In the last ten years, some higher level insurance executives came up with an amazing concept to increase their profits. A public relations and lobbying effort to convince people that legal action had run amuck. Their theory was that if this only effective check on the insurance companies efforts to outsmart their own bean counters was eliminated, they could be even more effective in calling claimants bluff, and further stacking the odds in their favor.

Remember the McDonald's coffee case? Poll: how many people think that McDonald's had to pay too much? Well, frankly, they didn't pay enough, but unless you understand the full story of that case, it probably sounds like too much.

Click Here For Article on McDonald's Coffee Case

So that is the basic structure of the system. Unfortunately, when it comes to medical insurance, the system is stacked much more in the favor of the insurance company than when you are talking about a personal injury claim. The reason is that legal action is much more difficult to finance, because the dollars are smaller and fewer lawyers handle this kind of work.

Into this mix steps the insurance medical exam. These doctors are paid far beyond their normal charges, to see the patient for a few minutes and find some reason, that the adjuster can pay less than he/she should. Not all doctors will tailor their opinions to what the insurance adjuster wants to hear. But remember this: This is one ofthe most profitable types of work for doctors to do, especially in this era of managed care. There are doctors who will slant their opinions towards the insurance company. If you were an adjuster, which would you hire?

With TBI patients, the insurance medical exam is even more treacherous. Stop and think like the gambler, who is now trying to cut his losses on what has turned out to be a bad bet. What defenses to your catastrophic injury do they have:

  • 1. No loss of consciousness.
  • 2. No neuro imaging studies showing your pathology.
  • 3. A discharge from treatment.
  • 4. Neurologists who haven't a clue.
  • 5. Misdiagnosis, misdiagnosis, misdiagnosis, from your own treating providers.
  • 6. You look and sometimes talk normal.
  • 7. Your deficits are subtle.
  • 8. One of your most serious problems, fatigue has not even been discussed by your doctors, and is difficult to quantify.

Their favorite defense will likely be that you are a malingerer, or that you have exagerated your symptoms, or more subtly, that while you are disabled and honest, you have created a fixation on your injuries that is magnifying your problem. Thus, if they can induce in you behavior during their exam, which can be construed to portray you in an unfavorable light, they may be able to fit you into one of these classifications.

If I were a hired gun for the insurane company, what tactic would I take? Make you lose your cool, get you defensive, have you refuse to cooperate, make you look like you were trying to hide something. If that didn't work, I might try to take advantage of other disabilities you have, such as poor ability to pick up on the subtleties of what I am saying: in other words, try to trick you. Beware of the good guy, bad guy approach. If they are being too nice, too friendly, be careful. Be careful period.

Now not all insurance medical examiners are dishonest. Again, the experienced adjuster may have learned that this type of examine costs him more in the long run (because you hire a lawyer or his expert is not believed) and an honest appraisal will better suit his needs. And with many of your cases, the evidence is so concrete that no one could minimize your problems. Still there are subtle ways in which they can prevent you from the full benefits you are entitled to.

Your own lawyer knows your case best. Take the time to go over different problems that might come up with him/her carefully. And discuss with him/her whether it is legal for you to either tape the exam and or have someone come into it with you.


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