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- Title
TRANSPARENCY IN FORENSIC EXAMS.
- Authors
Sims, Dorothy; Dove, Chris; Frederick, Richard
- Abstract
Medical examination of injured plaintiffs by doctors hired by defendants is a staple of modern tort litigation. Federal Rule of Civil Procedure 35 and its state counterparts authorize such examinations when the plaintiff's physical or mental condition is at issue. Although typically dubbed "independent" medical examinations or IMEs, their use often appears to be anything but independent in that defense-retained medical professionals have a strong financial incentive to dispute or diminish injury claims in order to obtain or retain a steady stream of lucrative work from defendants and their insurers. Although often tainted, defense-driven medical examinations remain necessary as a matter of due process. Defendants are entitled to test plaintiff claims. But they are not entitled to disparage those claims through a black box process in which the defense expert fails to sufficiently disclose or accurately describe the nature of the examination, including administration of tests or environmental factors impacting the examination. Empirical study reveals that defective, inaccurately reported defense examinations take place with disturbing frequency. To prevent tainted examinations from tainting justice, video recording, observation of the process, and production of testing and diagnostic materials should be the norm and not the exception. Unless forensic examination is made fully transparent it can easily promote error and unjust results.
- Subjects
PERIODIC health examinations; DUE process of law; MONETARY incentives; VIDEO recording; CIVIL procedure; PRODUCT liability
- Publication
Nevada Law Journal, 2024, Vol 24, Issue 2, p531
- ISSN
2157-1899
- Publication type
Article