Attacking the Defense Medical Exam Doctor
One of the most frustrating things for a plaintiff's lawyer is getting plaintiff's designation of experts and finding only the "usual suspects," doctors whose testimony you can anticipate the moment you see their name. In Maryland, and under the Federal Rules, a medical exam is not a matter of right and can be obtained only by an order from the court. When the defendant requests an independent medical exam of our client (IME), we agree to the exam but only under certain conditions. We also subpoena the doctor's financial and other relevant records. We do this for two reasons: (1) in many cases, the doctor refuses to respond and the insurance company withdraws the doctor; and (2) studies are showing that more and more high-priced hired gun experts are being ignored by juries.
You may be worried that the defendant will do the same thing to your treating doctor. In Maryland, the expert needs to be a "professional expert" before his financial and other personal information is discoverable. The lesson: it is almost always more advantageous to use the treating doctor than an outside expert.
If you have an uninsured motorist coverage case and your state has first party bad faith (Maryland does not) you may want to consider a bad faith claim based on if the defendant names a clearly biased expert. See, Deese v. State Farm, 838 P.2d 1265 (Ariz. 1992) (bad faith for insurer to use biased expert); Burgess v. Mid Century Insurance, 841 P.2d 325, 329 (Colo. App. 1992). (I doubt this would really work, but I would love someone to win this claim on behalf of a frustrated Maryland lawyer whose jurisdiction does not have first party bad faith.)
