The bad news is that there are no hard and fast rules for what the IME expert needs to see. The good news is that you can follow some general principles to help you determine what evidence the expert should see to give you the strongest and most credible opinion possible. And when in doubt the kitchen sink approach is always an option. Despite being costly, the kitchen sink approach at least guarantees that nothing important will be left out.
So if the kitchen sink approach guarantees that nothing will be left out, why not use it for every IME opinion? Two reasons mitigate against this approach. First, many doctors prefer not to see everything. Second, narrowing the scope of the records presented focuses the expert’s attention.
What if you decide 
to take a more judicious approach than throwing in everything but the kitchen sink? How do you decide what to give the physician? You want include all relevant evidence to avoid the allegation that your expert’s opinion is not credible because she did not review all relevant evidence. Making this determination can be daunting, but in many cases it is a matter of common sense. For example, in a meniscus tear case the expert will probably not need to see records from the time the claimant broke his wrist when he was 15. At a minimum, the IME expert should review everything the opposing party’s expert reviews. When in doubt, err on the side of providing more information than less. If you cannot decide whether to include something, ask yourself two simple questions:
If you can answer both questions with an unequivocal “no” then the doctor probably does not need to see the record. If you cannot answer both questions with an unequivocal “no,” then the doctor should see the record.
Examples are myriad. A doctor would probably want to see dermatology records in an examinee with a history of psoriasis and a claim involving degenerative joint disease of the lumbar spine since psoriatic arthritis would be a potential differential (and non-claim-related) diagnosis. On the other hand, a doctor would probably not want to see dermatology records in an examinee with a history of psoriasis who is making a claim involving a torn anterior cruciate ligament (“ACL”). A doctor probably would not want to see endocrinology records in an examinee with diabetes whose claim involves pulmonary injury. On the other hand, the doctor probably would want to see the endocrinology records if the claim involved nerve compression and symptoms of paresthesia in the fingers or toes.
One of the most vexing questions is whether to include such records as inpatient nursing notes from a postoperative period. As the party responsible for handling the claim, you will be most knowledgeable about the claim and will have noted any relevant information in what is otherwise extraneous material. Few IME experts need to review post-operative nursing notes and the like when they contain no information relevant to the injury at issue; however, some experts such as pulmonologist and infectious disease specialists will need to see everything. When in doubt, contact your IME vendor to determine what records the doctor wants to review. This will help ensure that you are providing the doctor only with the records she wants to review, will focus her attention, and prove more cost-effective than including everything but the kitchen sink.
In many claims, the file contains non-medical information. Common non-medical information includes surveillance, witness statements, job descriptions/videos, material safety data sheets (MSDSs), accident reports, expert reports (i.e., accident reconstruction reports, industrial hygiene reports, learned treatises, etc.), and investigative reports (i.e., law enforcement, OSHA, etc.). The physician should review non-medical information that is likely to affect her assessment of causation or nature and extent of injury. Sometimes making this determination can be difficult.
The physician should review witness statements that question the mechanism of injury, the severity of injury, the extent of disability, or the work-relatedness of injury. In some cases, you may want to withhold the witness statements if you intend call the witness to rebut the examinee’s claim at hearing or trial. However, withholding the witness statement runs the risk of losing a plausible basis for the IME physician to refute causation, work-relatedness, or nature and extent of injury. When determining whether to submit a witness statement to the physician you should ask whether the statement might impact the physician’s opinion on cause, relatedness, or nature and extent. If the answer is ‘yes,’ then they physician should see the statement.
The exception (assuming that you have no other strategic reason for holding the witness statement back) is if there will be evidentiary problems with the witness statement at hearing. Specifically, you may not want to submit a witness statement to a physician if you cannot produce the witness at hearing or trial to authenticate the statement. If you cannot produce the witness at hearing or trial, the physician would be relying on inadmissible hearsay (absent an exception) to form her opinion and the trier of fact would most likely strike any portion of her report that relies on inadmissible hearsay. While this is less of a problem in liability cases than in worker’s compensation cases because the discovery is more extensive, you should still be careful to ensure that what you submit will not make the doctor’s opinion in part inadmissible.
IME physicians often review job descriptions and videos. At first blush this makes sense in cases involving occupational/ repetitive motion injuries or where the mechanism of an accidental injury is disputed. However, not all job descriptions and videos are created equal. Before incurring the cost of having an IME physician review a job description or video, you should determine if the materials will add any value to the physician’s opinion. The job description or video should be specific, accurate, and complete. A job description that is written in nonspecific, generic terms will likely be of little persuasive value to either the doctor or the trier of fact. The job description or video needs to articulate or demonstrate exactly what the examinee does, for how long the examinee does it, and how physically demanding the task is. For example, if an examinee lifts a product off of a conveyor belt and places it on a cart, the physician should know the weight of the objects being lifted, the frequency that the objects are lifted, the height of the conveyor belt, the distance the person has to reach, the distance the person has to travel to get to the cart, the height of the cart, etc. If the physician does not know this information any opinion based on a job description or video will not be persuasive.
Claims for injury or disability often have myriad non-medical reports. These include law enforcement accident reports, MSDSs, accident reconstruction reports, other independent medical examination reports, industrial hygiene reports, engineering reports, learned treatises, and investigative reports (i.e., OSHA, law enforcement), etc. Assessing whether to give these reports to the IME physician introduces a new question: witness competence. While any one of the reports listed above may be relevant to claim, this does not mean that the report will be useful or that the physician will be competent to comment on the relationship between the report and the claimed injuries. For example, a physician without biomechanics or human kinematics training may not be able to competently judge an engineering report to determine if the forces documented in the report are sufficient to cause injury
Another problem that arises in non-medical reports is whether the report adds anything substantive to the doctor’s opinion. For example, law enforcement motor vehicle accident reports are notoriously vague and imprecise in accidents that do not involve serious physical injury. Even the severity of damages section is of dubious value because the categories are vague, the meaning of each category is unclear, and the assessment is based entirely on the subjective opinion of the officer preparing the report.
Determining whether to have the IME expert view surveillance footage, photographs, or reports can be vexing. The main issue is whether withholding the footage to maintain the element of surprise at trial outweighs the benefits to the IME expert’s opinion of incorporating the surveillance into her report. A less common but no less significant issue is whether the surveillance footage will actually help the case.
In the best case scenario, surveillance provides inculpatory evidence or the “gotcha” moment that will turn the case from marginal to a winner. So should you hold the information back or should you give it to the IME expert to review and incorporate into her report? The most sensible place to start when there is any doubt is with litigation counsel. If the person who will try the case wants the surveillance held back, it is probably wise to listen. In general though, you must determine the value of using the surveillance as a surprise versus the value of allowing the IME doctor to view and comment on the surveillance.
There are examples where it is more important for the IME expert to view surveillance than it is to hold the information back for trial. This is particularly true when medical causation is not an issue and the chief issue is the period of temporary total disability. Often issues surrounding the period of temporary total disability are amenable to attack using surveillance footage. Take a torn meniscus claim. The injured worker alleges that he cannot return to anything but sedentary work because standing for any length of time causes pain during the postoperative recovery period. However, you have surveillance footage that captures the claimant standing for an extended period of time without any apparent difficulty. Having the expert view the footage and comment on it may be the only way the expert will be convinced that a healing plateau has been reached.
Dubious claim for permanent disability are a different story. In those cases, the effect of revealing surveillance before trial can be that the claimant will have an opportunity to prepare to address the surveillance in advance of trial, increasing the likelihood that he will be able to offer a credible explanation of what is going on in the footage. In addition, when permanency is the main issue the surveillance footage will usually not change or otherwise bolster the IME expert’s opinion. If the claimant does not have objective sign of permanent injury, the expert will find that out by reviewing the medical records and conducting the physical examination. Surveillance footage is not likely to change the expert’s opinion in any substantive way. Also, withholding the video until trial has the advantage of bolstering the expert’s opinion to the trier of fact on permanency without giving the claimant an opportunity to explain the footage away.
In general, most people will want to withhold surveillance until trial unless the expert cannot form an adequate opinion without viewing the surveillance, i.e., declaring end of healing on a conceded causation claim. When in doubt, consulting with litigation counsel is the most sensible way to determine whether to use the footage. This does not answer the question of whether the surveillance is any good. If you are going to provide footage for the IME expert’s review, the last thing you want is for the report to disclose the footage without altering or strengthening the expert’s opinion.
“But she was carrying a bag of groceries and she had a 10 pound lifting restriction!” or “he was lifting his daughter out of her car seat and he isn’t supposed to bend or lift!”
The biggest problem with surveillance is that we forget a) that people have to live their lives and b) surveillance often lacks context. A claimant is not excused from performing activities of daily living because he got hurt and has work restrictions. To the cry, “but she was carrying a bag of groceries!” comes the retort: “and who, exactly, would have gone grocery shopping if she didn’t?” At hearing the usual litany of redirect questions would elicit the following information: a) the bag didn’t weigh that much and b) I paid for it later when I couldn’t get out of bed because of the increased pain. In this fashion, that documentary of fraud and exaggeration becomes instead persuasive evidence of the severity of the claimant’s condition and the callousness of the insurer in denying the claim. In addition, if the expert views the surveillance and issues opinions based on assumptions that cannot be supported by the actual visual evidence, the doctor’s credibility will suffer.
So when is surveillance footage ‘good’? When it unassailably rebuts a claim the injured person is making. This means that the grocery shopping footage is probably out unless the claimant alleges she is wheelchair-bound and is seen walking without assistance of any kind. If there is any doubt as to what the footage shows or whether it can be explained by putting it in the proper context, then it probably is not as good as you might think. To be useful, surveillance must not be subject to reasonable disputes as to what it depicts.
There is no hard and fast calculus for determining what the IME expert needs to see. The general rule is when in doubt, give more information rather than less. However, in many cases what information will be relevant or germane to the expert’s opinion will be obvious. As a practical matter, just because you have a medical record or other evidence does not mean the expert needs to see it. Instead, ask yourself if the record or evidence will have any impact on the expert’s opinion. You should also rely on your IME vendor to ensure that the expert gets the records he or she wants to see. If you take these simple steps, it will help you obtain the best IME possible.
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