A few narrative reports can be read at the time of the examination, but a large file should be reviewed earlier and then quickly scanned just before the history and physical (H&P). Radiographs should be studied if available. It is only necessary to review documents that are pertinent to your examination. For example, although you may note underlying cardiovascular disease, there is no need to detail the corresponding laboratory results, diagnostic test results, and the like. Your opinions in unrelated areas will not be legally admissible anyway, other than how they might directly affect rehabilitation issues. Do not discard records sent to you, however, even if they are peripheral to your assessment. An attorney may want to review every note ever sent to you. If some files are missing, suspicions may be raised that they were discarded for some ignoble reason. The records sent to you for purposes of an IME, that is, not for a treatment patient, should be retained for a minimum of 2 years. There is no universally accepted guideline for the time frame of record retention beyond that, and this may vary by jurisdiction.

As always, it is imperative to be thorough while not becoming immersed in superfluous detail. The proper degree of completeness allows for full reproduction of the history months or years later, when direct recall of the patient is impossible. A chronological sequencing of events will facilitate later review. The line of questioning should be orderly: onset of the problem, ongoing and current symptoms and how they are changing, diagnostic testing and the patient’s understanding of test results, past and present treatment efforts, history of similar problems, and pertinent, unrelated medical history. Your report might be the only documentation of an occupational or functional history, including the relationship of symptoms or job status to intercurrent events. Separate the effects of work-related and non-work-related injuries as much as possible. Include details of the effect of the patient’s problem as it relates to physical, psychological, social, and vocational issues, where applicable.

Third-party payers, defense attorneys, case managers, and others often balk at a “diagnosis” based solely on subjective patient reports without objective abnormalities. Where possible, generate a set of observations that are as objective as possible to counter future attempts by an attorney to dismiss all subjective reporting as unreliable. A common example is the distribution of trigger or tender points in a patient with a myofascial condition. It is helpful, years later, to have supportive documentation that the tender spots were at characteristic, reproducible locations described in textbooks (e.g., upper trapezius, levator scapula insertion, lateral epicondyle). On the other hand, if the patient reports a nonphysiologic pattern (e.g., severe tenderness with minimal pressure over every area examined), your description should be clear on this point. This type of reporting justifiably lends an objective air to what is inherently a subjective topic, that is, the reporting of pain.

Similarly, it will be more helpful to document joint or spine ranges of motion in terms of percentage or degrees rather than with modifiers such as mildly or moderately reduced. However, do not think that endless goniometric joint motion or computerized strength measurements or other data will by themselves lend additional credence to your report. A medicolegal report is useful because of the clear observation and objective reasoning used in reaching conclusions, not because of an overabundance of data.

When a physical examination finding is described as positive, specify for what symptom or sign it is positive. To illustrate, a straight-leg-raise test might cause pain. Was the pain shooting from the low back to the posterior thigh and then to the ankle, at 45 degrees of leg elevation, with an electric quality, or present at 80 degrees for only a mild pulling sensation in the hamstring area? The same pertains to Spurling’s maneuver, Tinel’s sign, and many others.

In writing the IME report, after the introduction add a passage such as, “Mr. Smith was told that no treatment would be provided, and that the report would be sent only to you. He understood these points and proceeded.” This affirms the inherently different nature of this visit, in that a doctor-patient relationship has not been established.

The next section should note the origin and content of outside records. The pertinent findings can be cataloged either by date or content (e.g., summarize all clinic notes in order, then scanning studies, then electrodiagnostic findings). It is unnecessary to routinely provide details about each note as to date, content, or conclusions. It is acceptable with acknowledgment to refer to an outside record as a summary of prior testing and/or treatment. For imaging studies, your report should mention whether you reviewed the films and the radiologist’s report, the films only, or the report only. Keep in mind that a cross-examining attorney will be quick to point out that you are not formally qualified to interpret such studies, that is, that you are not a board-certified radiologist. If the actual films were not available, though, the same attorney would certainly attempt to have you admit that it is useful to see the films yourself, since radiologists are not clinicians. There is no need to vary your own standard of practice in such cases, although as a rule, it is preferable to have viewed the images yourself.

All initial and any supplemental reports must be executed with word processing. Handwritten notes are unacceptable other than for brief items such as telephone messages, and perhaps prescription renewals and the like. This allows for legibility after photocopying, faxing, and recopying, as often happens with these documents in the medicolegal realm. A sound practice pattern is to dictate any note regarding direct patient communication. You will often be asked at the time of deposition if your habit is to dictate clinic notes after each patient, at the end of the office day, on the drive home after hours, or even at a later date. It is of course preferable to allow dictation time as part of each office visit to ensure highest recall, possibly eliminating the need for handwritten notes taken during the history.

To the extent possible, the history, physical examination, and your conclusions should be summarized logically and in as objective a fashion as feasible. Avoid judgmental or pejorative terms, such as exaggeration of symptoms, or embellishment of pain reports. These are impossible to support legally, as is the claim that the patient does not appear legitimate. In cases where there are no objective abnormalities, it is preferable to provide a dispassionate discussion about the lack of correlation between the symptoms and disability. For example, “The only impairment on examination or testing is minimal tightness of the left trapezius muscle. This does not explain the symptoms of chronic neck and low back pain, bilateral arm numbness, or the 9 months off work.” Similarly, it is important to outline those impairments that do account for signs and symptoms, such as “C7 nerve root abnormality on the right is confirmed by the reduced triceps reflex and strength and by the positive Spurling’s maneuver. This corresponds to the MRI scan finding of a right, low cervical disc herniation and to the EMG abnormalities.” This type of thorough recording of the thought process will simplify the chart review and deposition at a later date.

The usual IME is arranged when one party desires to obtain an expert medical opinion from a practitioner who has never previously examined the patient. Your opinion is then used to help resolve a conflict between the patient and a third party, often an employer or insurance company. The IME request may originate from a company physician or worker’s compensation representative, an insurance company providing worker’s compensation coverage, a case manager for an insurance company, or an attorney representing either side in this conflict.

Although your medical expertise is requested, there is no doctor-patient relationship established under traditional law. Because of that, the IME report cannot be introduced into the legal record unless a deposition occurs. This means that an IME will more likely lead to a deposition than will treatment
evaluations. Another consequence of the lack of a doctor-patient relationship is that the IME physician is effectively shielded from malpractice suits arising from this activity. However, there has been recent discussion to reverse that “immunity.” A recent ruling in Michigan allowed a professional liability case to proceed against a physician who had performed an IME and who allegedly caused harm during the physical examination. Several courts have begun to require physicians who conduct examinations related to employment to notify patients of life-threatening conditions even if they are unrelated to employment.

The underlying conflict between two parties mentioned earlier is the genesis of much of the controversy surrounding the medical ethics of IMEs. Take the example of a case manager for an insurance company that provides worker’s compensation coverage for a large manufacturer. It could be inferred that the case manager will remain in good standing only if she attempts to reduce the monetary consequences of the claims she oversees. The logical next step might be that she develops a list of IME physicians on whose opinions she can rely (i.e., who routinely determine that there is no impairment present, or if there is, that it is less severe and of less importance than the patient’s own physician believes, and/or that it is unrelated to employment factors). The converse applies to plaintiff attorneys, who know which practitioners and IME doctors usually find severe and long-lasting disability, even in the absence of objective impairment. The “independent” or “impartial” in IME is thus potentially compromised.

Some physicians have built a particular reputation for favoring either the defense side (companies, company physicians, case managers, worker’s compensation insurance companies, defense attorneys) or the plaintiff side (usually plaintiff attorneys). You could be asked during deposition what proportion of your legal work arises from which side. A physician who performs IMEs exclusively for one side may appear less objective to outsiders. Having said that, practice realities mean that it is virtually impossible to see anything approaching 50% from each side. Your reputation will be most well served if it remains crystal clear to all concerned that no one can reliably count on your opinion in advance; your conclusions in a given case will depend only on the particulars of that case.

Perhaps it is now more apparent why some believe this medicolegal world of IMEs and depositions should be avoided. Fortunately, judges, administrative law clerks, and mediators increasingly recognize a “boilerplate” IME and its authors, and will discount or even ignore its conclusions. Even strongwilled participants from both sides eventually understand that such one-sided opinions will not survive scrutiny and may cost more in the long run, as challenges and appeals drag out.

The straightforward, underlying principle for an IME, as with all of medical practice, is to always keep in mind what is in the best interest of the person you are examining. This would seem to sway physicians toward the plaintiff side of matters, since after all we should be patient advocates. In reality, an ethical physician will not be labeled as residing in either the plaintiff or defense camp, attesting to a high level of objectivity and impartiality. Some examples will illustrate this principle.