Independent medical exams can fuel mistrust

Claimants in any maritime injury case usually undergo a mandatory medical exam. This holds true whether they’re a seamen under the Jones Act, shoreside personnel under the Longshore and Harbor Workers’ Compensation Act, passengers or simply visitors on board a vessel for a quick tour. 

A medical exam that is used to verify injuries is a routine part of the claims process. However, such exams can create strong divides within the industry’s legal community.

These exams are sometimes called “independent” medical exams, and the term itself can be a source of mistrust. Claimant attorneys often say there isn’t anything independent about the exams, since they’re generally overseen and paid for by the defense team. They also argue that an inherent conflict exists because an examining physician could feel compelled to protect the side that pays for his services.

On the flip side, many defense attorneys say it would be difficult to do things differently. Imagine the outcry if claimants had to pick up the tab for their medical exams. Defense attorneys also argue there has to be some form of checks and balances. A treating physician documents the injuries described by the claimant. It would be unfair to deny the other side an opportunity to validate those findings. This includes seeing claimants on the examination table and conducting peer reviews of X-rays, MRIs, neurological testing and surgical procedures.

Due to the high stakes associated with serious claims, it’s understandable why both sides are passionate in their respective positions. It isn’t uncommon for the defense team to hire several board-certified specialists to examine claimants closely. And it isn’t uncommon for claimant attorneys to send junior staff to accompany clients to their independent medical exams.

While these medical exams have always been standard practice, we’ve seen an explosion of new technology. This includes smart phones and wearable video cams. As new technologies emerge, they will likely present unexplored challenges for courts in setting boundaries for what will and will not be allowed at medical exams.

About the author

John K. Fulweiler

John K. Fulweiler is a licensed mariner and experienced admiralty attorney. He represents individuals and companies throughout the East and Gulf Coasts and has recently taken command of his own maritime law firm. He enjoys navigating the choppy waters of the maritime law, but readily admits to missing life on the water. He can be reached at john@fulweilerlaw.com . His website is www.saltwaterlaw.com.

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