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Bicycle-Accident Cases: Independent/Defense Medical Exams

In many bicycle-accident injury cases, the insurance company will eventually demand that the injured cyclist attend a medical examination with a doctor of the insurance company’s own choosing.  The insurance company has a right to demand one such examination pursuant to California’s Code of Civil Procedure.

The insurance company likes to refer to these examinations as “independent medical examinations,” under the theory that the insurance company should have the opportunity to get an opinion independent from that of the injured cyclist’s doctors. In reality, these examinations are more appropriately called “defense medical examinations” because in almost every case, the doctor the insurance company chooses will provide an opinion to the insurance company that will help the insurance company defend the case and defeat the injured cyclist’s claim for damages.

Generally, the insurance company’s doctor will either opine that (1) the cyclist’s injuries are not as severe or as long-term as the cyclist’s own doctor says they are; or (2) that the cyclist’s injuries are from an unrelated accident or injury.  In addition, these defense doctors will often testify that (3) some or even all of the cyclist’s medical treatment, and thus medical bills, were excessive and/or unnecessary.

These insurance doctors unfortunately have an overwhelming financial incentive to write a report that is favorable to the insurance company and unfavorable to the injured cyclist. Many such defense doctors earn hundreds of thousands of dollars each year writing reports helpful to insurance companies defending personal injury cases. Many defense doctors will testify as much as 90% of the time in a manner that hurts the injured cyclist’s case.

As if that wasn’t bad enough, in many cases the defense doctor will begin questioning the cyclist during the medical examination about medically irrelevant specifics as to how the bicycle v. auto accident occurred.  The defense doctor may then later testify that the cyclist made statements that contradict the cyclist’s account of how the accident actually occurred.  The insurance company may then use this testimony to defeat the cyclist’s accident claim entirely.

For these reasons it is extremely important for an injured cyclist or their bicycle accident lawyer to preserve all rights in regards to the defense medical exam.  First, it is crucial that the cyclist or the cyclist’s lawyer serve the insurance company’s lawyer with a written response preserving the cyclist’s legal rights.  The medical examination is not a deposition, and thus it is entirely inappropriate for the doctor to ask questions about how the accident occurred. Thus, the written response should object on that basis and make it clear that the cyclist won’t answer such questions during the examination except to describe how the injury occurred in general terms.

The written response should also object and make clear that the doctor may only use such tests and procedures which are ordinarily considered necessary for examining the plaintiff cyclist’s injuries caused in the bicycle accident. These are just some of the objections that a cyclist or the bicycle-accident attorney may want to assert in a given case.

Second, it is crucial that the injured cyclist and their bicycle-accident lawyer bring an audio recorder to the examination and record the entire process. This will prevent the defense attorney from later giving a false account as to what was said or done at the examination.

If the defense doctor is abusive to the cyclist or conducts unauthorized tests or procedures, the California Code of Civil Procedure gives the plaintiff cyclist or their bicycle-accident lawyer the right to suspend the examination and seek a protective order with a the civil court.

More information on how to handle these defense medical examinations and other similar insurance tactics can be obtained by speaking with the licensed attorneys at Bay Area Bicycle Law.