Perilous Psychological IME Review Standard for Plaintiffs in Personal Injury Case

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    On this blog, we have written about some of the abuses and other problems that are associated with independent medical exams and examiners (IMEs). In the previous post on potential problems stemming from IME procedures, we wrote about some of the most notorious practices frequently associated with medical exams for physical injuries where physical signs may be present.  These problems can also occur in psychological exams. Due to the more internal nature of cognitive and psychological problems where physical signs are not typically present, psychological IMEs present, potentially, a greater opportunity for interpretation, influence, and abuse.

    Unfortunately, the Pennsylvania courts have yet to recognize that IMEs are frequently independent in name only. As previously discussed, these professionals are only human and subject to the same unconscious biases that can influence any person when completing a task on behalf of the party that hired them to perform work. While many professionals undoubtedly endeavor to maintain objectivity, our unconscious and conscious biases can sometimes hold greater sway than we acknowledge.

    A recent decision by the Pennsylvania courts purports to strike a balance between a litigant’s rights to counsel and the integrity of a medical exam. In reality, the balancing factor is of minimal importance and the decision transforms a psychological exam into a black box where the inputs and outputs are known, but the internal processes are shrouded in secrecy and, therefore, open the door to abuse.

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    How Did This Auto Personal Injury Accident Generate a Ruling of First Impression on IME Practices?

    The matter Shearer v. Hafer, No. 2016 PA Super 61 (Pa. Super. 3/9/16) arose following an auto accident that occurred in July of 2010. Allegedly, the accident occurred when the defendant pulled his vehicle into traffic in front of the oncoming plaintiff.  The individual injured in the accident apparently suffered cognitive distress and damage as the result of the accident. The injured individual was examined and tested by a neuropsychologist at the Hershey Medical Center. The testing employed standardized testing procedures and was conducted without the presence of any third parties.

    Due to the above testing, counsel for the party accused of causing the accident and injuries hired their own neuropsychologist to conduct an IME. While the injured party did not oppose the opposing party’s right to hire an IME or having to subject herself to additional tests, there were issues with the conditions imposed on the testing.

    At issue was the IME’s insistence that no third party, including counsel, be present during the neuropsychological evaluation. Furthermore, the IME doctor objected to any recording of the exam and procedures and methods utilized. The doctor cited the ethical principles of psychologists and code of conduct by both the American Psychological Association (APA) and the National Academy of Neuropsychology (NAN) as grounds for his conditions.

    Counsel of the party injured in the auto accident found these conditions to be unacceptable. A failure to be present during the testing may have been minimally palatable though a disfavored course for the matter to take. However, the prohibition against recording and thus any objective record of the testing was likely out of the question. While it is always more direct and easier to halt deviations from norms and standards as they occur, a record of the exam, at least, makes it possible to identify and bring problems with the exam to light.

    What Did the Court Decide Regarding an Injured Plaintiff’s Right to Counsel During a Psychological Exam?

    At the trial court level, the court found in favor of the doctor and ordered that while counsel for the injured party may be present during the preliminary interview, counsel may not be present during any standardized testing procedures or in the evaluation room. Furthermore, the order held that recording devices of any type were prohibited from the evaluation room.

    In their appeal, counsel for the injured party cited the Pennsylvania Rules of Civil Procedure, Rule 4010(a)(4)(i) as grounds for the reversal of the order. The rule states:

    The person to be examined shall have the right to have counsel or other representative present during the examination. The examiner’s oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.

    Counsel for the injured appellant also cited Rule 40110 (a)(5)(i) that states:

    [t]he party who is being examined or who is producing for examination a person in the party’s custody or legal control may have made upon reasonable notice and at the party’s expense a stenographic or audio recording of the examination.

    On its surface, this would appear to create a strong right for the injured party to have his or her counsel present and to have the matter recorded.

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    The Court’s Logic To Deny Counsel to Litigants Undergoing Medical Exams Ordered by Opposing Council

    However, the court then engages in a rather perplexing sequence of logic to find that the trial’s court order to denial counsel and recording was within its discretion. The court does this by selective citation and through the principle that while the term shall is usually determined to be mandatory, “it is the intention of the legislature which governs and the intent is to be ascertained from a consideration of the entire act, its nature, its object and the consequences that would result from construing it one way or the other.” Linde v. Linde Enterprises, Inc., 118 A.3d 422, 435 (Pa. Super. 2015), appeal denied, ___ A.3d ___, 2015 WL 9646645 (Pa. 2015) (citing Fishkin v. Hi-Acres, Inc., 341 A.2d 95, 97 (Pa. 1975)). See also Tyler v. King, 496 A.2d 16, 19 (Pa. Super. 1985)

    Thus, we should note, that the language cited by the court requires a consideration of three items: the entire act, the goals behind the act, and the potential consequences.

    First, the court dispatches with the precedent of State Farm Mutual Automobile Insurance Co. v. Morris, 432 A.2d 1089, 1092 (Pa. Super. 1981) where the court found allowing the presence of counsel during a psychological exam was within the discretion of the court. The court dispatches with this precedent because it predated the 1998 amendment to the Rule where the legislature saw fit to explicitly add language granting the right to have counsel present during the examination.

    The court then looks to Rule 4012 addressing protective orders and admits that no case law addresses the application of Rule 4012 to Rule 4010. However, despite a legislature that saw fit to explicitly add language to rule 4010 indicating that an injured litigant “shall have the right to have counsel or other representative present during the examination” the court found that Rule 4012 should nevertheless permit discretion to abridge this right because Rule 4010 allows the court to limit the number of individuals present during “all discovery” when “good cause” is present.

    The court then engages in a discussion regarding the fact that good cause was present in this matter. The court cites previous en banc decision. However, while the decision in Dougherty v. Heller did compel discovery, the decision did note “the court’s obligations to administer justice efficiently and prevent abuse of the discovery process.” The right for the injured plaintiff to have counsel present during IMEs was plainly to prevent actual and perceived abuses of the process identified by the legislature. In fact, the legislature saw fit to expand the protection afforded by the rule in its 1998 amendment.

    While the court then discussed the importance of respecting the standards set forth by APA and NAM, it failed to address the context of the exam. This is not an exam ordered for the purposes of medical treatment, but rather for the purposes of litigation. Furthermore, the court failed to explain how counsel’s presence during a pre-exam interview but not during the exam process when “standardized” results are produced in the subjective environment presented by any human-administered test served as any protection at all.

    Here, the court evaded clear legislative intent regarding Rule 4010 and its protections. Rather the court afforded significant deference to professional standards that were crafted with medical and not legal concerns in mind. Considering that this exam would not take place but for the legal process and the incentives litigation imposes, it is curious that the court would reach this result.

    Our Pennsylvania Personal Injury Attorneys Are Here to Help

    If you or someone you love has been examined by an IME and suffered abuse or negligence, you may be entitled to compensation. Contact the personal injury attorneys at The Reiff Law Firm at (215) 709-6940 or visit us online for you free confidential legal consultation.

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