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Physicians who perform IMEs, write IME reports, and defend them at depositions, hearings, or trials now have a new, customized, invaluable resource - the text Writing and Defending Your IME Report: The Comprehensive Guide. The text provides physicians with everything they need to write better and more defensible IME reports. In addition, it teaches physicians how to defend their IME reports.
Features:
10 Detailed Model Reports
27 Trick and Difficult Cross-Examination Questions (each with three different replies and a valuable lesson spelling out what counsel is trying to achieve and the strengths and weaknesses of each reply).
25 Tactics (fair and unfair) that opposing counsel will use to discredit the IME physician and her report. Each one of the 25 tactics has:
An explanation of the wording in the IME report
A sample cross-examination demonstrating the tactic in action
A comment analyzing the tactic and offering specific advice on how to defeat the tactic, andAn example how to defend the IME report as written.
15 Common substantive, grammatical, typographical, and other transcription errors with suggestions on how to catch them before your report is finalized and how to answer questions about the mistakes that slip through
6 Techniques for reducing the risks of being accused that the client improperly influenced you and your IME report
35 Red Flag Words (terms) to avoid when you write your IME report
6 Techniques for avoiding the use of extraneous language and information in your IME report. These techniques are demonstrated in 24 examples each which contain the offending language in the reports, resulting cross-examination, comment, and defense of the report as written
21 Techniques for making your report powerful, persuasive, and understandable with 65 detailed examples
20 Techniques for stating your opinions and conclusions in a defensible manner with 78 detailed examples
8 Techniques for using citations in your IME report to your advantage with detailed examples
14 Techniques for documenting a detailed physical examination with detailed examples
7 Techniques for obtaining and documenting a detailed, well-written, accurate history in your IME report with detailed examples
10 Techniques for properly disclosing all documents reviewed prior to drafting the IME report with detailed examples
6 Techniques for properly formatting your IME report with detailed examples
5 Techniques for staying within your true are of expertise with detailed examples
5 Techniques for accurately and objectively stating your qualifications with detailed examples
5 Techniques for dealing with background information and transmitting letters with detailed examples
17 Page Executive Summary Providing the Physician reader with a detailed roadmap of the text
Table of Contents:
HIGHLIGHT OF CONTENTS
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Chapter 1 Introduction and
Executive Summary
� Introduction � Answer Only the Questions Asked � Just Say �No� � Background Information and Transmittal Letters � The Examiner�s Qualifications � The Examiner�s True Area of Expertise � Medical Records and Other Documents Reviewed � Formatting � History � Physical Examination � Citing Authority � Opinions � The Powerful, Persuasive, and Understandable Report � Extraneous Language � Words to Avoid � The Influence of the Referring Client � Proofreading � Defending the IME Report � Model Reports
Chapter 2 Background Information and Transmittal Letters � Executive Summary � Preliminary Identifying Information � Preliminary and Introductory Information � Transmittal/Cover Letters
Chapter 3 Stating the Examiner�s Qualifications Accurately and Objectively � Executive Summary � Legal Requirements � Accuracy � Objectivity � Unearned Designations or Degrees � Knowledge of Literature
Chapter 4 The Importance of Staying within the Examiner�s True Area of Expertise � Executive Summary � Legal Terms and Opinions � Costs, Value, Money � Different Medical Discipline, Specialty, or Sub-Specialty � Commenting on Non-medical Areas of Expertise
Chapter 5 Formatting � Executive Summary � Cover Page � Font � Topic Headings � Short, Concise Paragraphs � Spacing � Page Numbering
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Chapter 6 Properly Disclosing Precise Medical Records and Other Documents Reviewed � Executive Summary � Precisely Listing Medical Records and Other Documents Reviewed � �Including� and �Including, but not limited to� � �Relevant portions of� � �Various� � Missing Medical Records and Documents Not Reviewed � Surveillance Material � Illegible Records � Records Supplied by the Referral Source
Chapter 7 The Examinee�s History � Executive Summary � Overview � Pre-existing Status/Past Medical History � Injury/Incident � Treatment History � Occupational History � Psychosocial History � Family Medical History
Chapter 8 Physical Examination � Executive Summary � Physical Examination � Pain Status Inventories � Current Status � Functional Status
Chapter 9 How to Use Citations to Texts, Journals, Guidelines, and Other Authority to Bolster a Report�s Credibility � Executive Summary � Citing Authority Properly � Consequences of Failure to Cite Authority Specifically � Dated Authority � Quoting Authority � Authoritative � American Board of Independent Medical Examiners Guidelines � Documenting a Reliable Methodology � Diagnoses � Causation � Apportionment � Aggravation and Exacerbation � Prognosis � Maximum Medical Improvement � Permanent Impairment Rating � Work Capacity and Disability � Past and Future Care � Symptom Magnification, Fraud, Malingering and Objective Support for Subjective Findings
Chapter 10 Stating Opinions and Conclusions in a Defensible Manner � Executive Summary � State Opinions Clearly and with Confidence � State Reasons for Opinions � Conclusory or �Net� Opinions � State All Opinions to Which the Expert Will Testify � Documenting a Reliable Methodology |
� Diagnoses � Causation � Apportionment � Aggravation and Exacerbation � Prognosis � Maximum Medical Improvement � Permanent Impairment Rating � Work Capacity and Disability � Past and Future Care � Symptom Magnification, Fraud, Malingering and Objective Support for Subjective Findings
Chapter 11 Making Your Report Powerful, Persuasive, and Understandable � Executive Summary � State Things Clearly and Directly � Do Not Speculate or Guess � Guessing About Future Medical Costs � Avoid Boilerplate Language � Avoid Absolute Words � Avoid Vague, Equivocal, and Uncertain Reports � Do Not Use Emphasis When Expressing Findings or Conclusions � Use the Active Voice � Use Precise Language � Use First-person Singular � Use Confident Language and Avoid Hedge Words � Define Technical Medical Terms and Medical Jargon � Use Objective Language � Explain the Meanings of Medical Abbreviations � Avoid Argumentative Language � Beware of Commenting on the Credibility of the Examinee and Others � Maintain Consistency in and amongst Reports � Avoid Drafting Reports That Appear Biased or Partisan � Computer-assisted Report Templates and Standardized Language � Additional Recommendations
Chapter 12 Damaging Extraneous Language and Information that Should Not Be Included in IME Reports � Executive Summary � �Friendly� Language Directed at Counsel, Adjusters, or Other Referral Sources � Speeches � Letterhead � Cover Letters � Discussions with Retaining Counsel � Additional Examples of Extraneous Language
Chapter 13 Red-flag Words to Avoid � Executive Summary � �Authoritative� � �Legal,� �Illegal,� �Legally,� or �Illegally� � �Draft�
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� �Work Product,� �Confidential,� or �Privileged� � �Probable� and �Possible� � �Substantially� � �Obvious� and �Clearly� � �Appears� ��Presumably� � �Evidently� � � �Supposedly� � �Is said� � �He,� �She,� �It,� �They,� and Other Pronouns � Royal �We� � �It Seems,� �Could,� �Apparently,� �I Believe,� and Other Hedge Words � �Complete,� �Thorough,� �Meticulous,� �Exhaustive,� and Other Such Words � �Patient� � �Malingering� � �Alleged� and �Credible� � ��Dictated But Not Read� and �Electronic Signature�
Chapter 14 Preparation of IME Reports and the Influence of the Referral Source � Executive Summary � Draft Reports � Requests for �Corrections,� �Clarifications,� and �Improvements� � Review and Finalization by the Referral Source � Cover Letter from Referral Source
Chapter 15 Catching Mistakes Before They Catch You � Executive Summary � Substantive Mistakes � Grammatical Mistakes � Typographical or Transcription Errors � Spelling � Run-on Sentences
Chapter 16 Defeating Counsel�s Tactics � Executive Summary � Tactics and Defenses
Chapter 17 Trick and Difficult Cross-Examination Questions for Independent Medical Examiners � Executive Summary � Responses to 27 Trick and Difficult Cross-Examination Questions for Independent Medical Examiners
Chapter 18 Model Reports � Report #1: Personal Injury-Upper Extremity Injuries � Report #2: Racial Discrimination-Emotional Distress � Report #3: Workers� Compensation-Personal Injury � Report #4: Workers� Compensation-Hearing Loss � Report #5: Workers� Compensation (Claimant)-Chiropractic � Report #6: Motor Vehicle Accident-Neck, Upper Back, and Anterior Knee � Report #7: Brain Injury � Report #8: Workers� Compensation-Lower Back � Report #9: Personal Injury-Multiple Injuries � Report #10: Workers� Compensation-Arm Injury
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One of the text's 479 examples (Example 12.54) is set forth below:
Example 12.54: Overly cooperative examiner
Report States:
I hope this IME report will be useful to you.
Resulting Cross-examination:
Q. Doctor, you tried to cooperate with the insurance company who retained you to perform an IME in this case, correct?
A. Yes, I did.
Q. In fact, you tried to write your report so the insurer would find it useful, isn�t that the case?
A. I wrote what I found.
Q. You knew from the two questions asked by the insurer that they were attempting to discontinue the temporary total compensation of the claimant and you gave them a report they used to file for the discontinuance, correct?
A. I issued my IME report based upon the results of my examination.
Q. After you knew they were attempting to discontinue the weekly compensation of the claimant, you wrote in your report, �I hope this IME report will be useful to you,� correct?
A. I didn�t mean anything by the comment.
Q. Could you explain under oath, Doctor, what you did mean by, �I hope this IME report will be useful to you�?
Comment: Comments and statements like the one in the above example frequently find their way into IME reports or into accompanying cover letters. Examiners are better served by omitting this kind of polite comment that can be mischaracterized by opposing counsel to imply a sinister conspiracy.
Defending the Report As Written: Examiners who act defensively when faced with a comment of this nature do themselves and their reports a disservice. There is no need for the examiner to be so timid on cross-examination. In addition, the IME physician should carefully review the context of the statement to see if counsel is mischaracterizing it or twisting its meaning.
Q. Could you explain under oath, Doctor, what you meant by, �I hope this IME report will be useful to you�?
A. I was trying to be polite�something we don�t see enough of. I resent the dishonest way you took the statement out of context. The entire sentence in my report reads, �I hope this IME report will be useful to you as you continue to assist the examinee.�
One of the text's 27 trick and difficult questions (#2) is set forth below:
Question 2: Treating physician vs. IME examiner
Question: Since you only saw the examinee once, for 30 minutes, and her treating doctor saw her numerous times over a three-year period, isn�t the treating physician in the best position to opine on the examinee�s disability, impairment, and work capacity?
Reply 1 (Novice): Yes, she is.
Reply 2 (Defensive): Just because she is the treating physician doesn�t mean she knows more than I do.
Reply 3 (Artful): The treating physician did not enjoy the advantage of having all of the medical records available to me before developing her opinion. Furthermore, I was asked to answer specific questions. It is possible that her treating physician may not have my extensive training and experience in the areas of disability, work capacity, and impairment or have specific training in rating and evaluating disability impairment and work capacity. Therefore, in this case, the answer to your question is, no, the treating physician is not in a better position than I am to opine on the examinee�s disability impairment and work capacity.
Lesson: Here counsel is trying to allege, imply, or infer that because the treating physician has had more contact with the examinee, she is in a better position to opine on the issues raised by the IME process. In fact, many IME examiners have had extensive training and experience in dealing with evaluating and rating impairment and disability. They have no allegiance to the examinee and have no patient-physician relationship. Examiners also have the benefit of hindsight, which the treating physician often does not have.
� The novice reply is a major concession that could dramatically influence the outcome of the case.
� The defensive reply is a weak denial without any reasons or specifics to back it up. It is not persuasive.
� The artful reply is a strong answer because it provides specific reasons and information to back it up. Notice as well how the examiner gave his explanation first and then provided his �no� answer. This helps to ensure that the examiner�s explanation is not cut off.
One of the text's 25 tactics (#7) is set forth below:
Tactic 7: Hurt the examinee
Counsel here will try to show
that the examiner hurt the claimant during the IME exam. Being �too rough,�
even if it didn�t cause any permanent damage, may not sit too well with the fact
finder. This tactic is defensed by being prepared to explain the various
safeguards the examiner employs to insure that the examinee is not injured
during the examination.
Example 16.29: Hurt the examinee
Report States:
The examinee tolerated the 45-minute
IME examination well.
Resulting Cross-examination:
Q.
Doctor, are you concerned about the fact that you hurt the claimant during your
IME examination?
A. I am not, as it is not true.
Q. Here is a report by her treating doctor who she saw three hours after your exam. In the report he recounts her injury at your office and restricts her to bed rest. Do you still maintain, Doctor, that you didn�t hurt her?
Comment: Counsel here is making a serious allegation against the examiner. If the fact finder believes the examinee, the factfinder is likely to be upset with the examiner and discount his entire exam and report. The examiner may also face potential civil liability for malpractice.
Defending the Report As Written: When faced with this type of spurious allegation, the examiner needs to do more than just deny it. In a �she said, he said� situation, there is no telling who the judge will believe.
Q. Doctor, are you concerned about the fact that you hurt the claimant during your IME examination?
A. Counsel, I would be concerned for the welfare of the claimant if your statement was true. However, the examinee was told orally not to do anything during the exam that would result in harm and to stop the examination at any time she had a concern. This was witnessed by my nurse and documented in my report. She was also told to notify us immediately of any difficulties during the examination. She at no time during or after the examination did this. At the end of the examination, she read and signed the satisfaction survey. In the form she answered the following three questions:
1. Were you pleased with the manner in which this evaluation was performed?
(She checked �yes� she was.)
2. Were you treated with dignity and respect by the staff?
(She checked �yes� she was.)
3. Did you experience any difficulties during the examination?
(She checked �no� she did not.)
She then signed and dated the form. Counsel, would you like to make this form part of the record?
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