Independent Medical Exams for Brain Injury Cases in New York
If you’ve suffered a brain injury in New York and filed a personal injury or workers’ compensation claim, you may be required to attend an Independent Medical Examination (IME). These examinations can significantly impact your case outcome, yet many injury victims are unfamiliar with their rights during the IME process. Understanding what to expect and how to protect yourself during an IME is critical to preserving your claim.
Key Takeaways
- IMEs are mandatory in most New York injury cases: Failure to attend can result in dismissal of your case or loss of benefits.
- You have specific legal rights during the exam: New York law allows you to bring a witness and record the examination.
- The examining doctor works for the insurance company: IME physicians are not neutral and their reports often favor the insurer’s interests.
- Brain injury IMEs involve specialized neuropsychological testing: These evaluations assess cognitive function, memory, and behavioral changes.
- Legal representation makes a difference: An experienced brain injury attorney can help you prepare and challenge unfavorable IME findings.
What Is an Independent Medical Examination?
An Independent Medical Examination is a medical evaluation conducted by a physician chosen by the insurance company or opposing party in a personal injury or workers’ compensation case. Despite the term “independent,” the examining doctor is hired and paid by the entity seeking to minimize or deny your claim.
In New York, IMEs are authorized under CPLR § 3121 for civil cases and Workers’ Compensation Law Section 137 for workplace injury claims. These statutes allow insurers and defendants to have injured parties examined when their physical or mental condition is in controversy.
According to New York workers’ compensation attorneys, you have no choice but to comply with the request for an IME if you don’t want to lose your medical benefits and replacement income. Failure to attend can result in dismissal of your personal injury lawsuit or termination of workers’ compensation benefits.
Why Are IMEs Required for Brain Injury Cases?
Brain injuries present unique challenges in personal injury litigation. Unlike broken bones or visible wounds, traumatic brain injuries often involve symptoms that cannot be seen on standard imaging tests. Insurance companies frequently request IMEs in brain injury cases to:
- Challenge the severity of your cognitive impairments
- Dispute the connection between the accident and your brain injury
- Argue that your symptoms are exaggerated or pre-existing
- Justify denying or reducing your claim payment
- Obtain evidence to use against you at trial
The scope of traumatic brain injuries in New York underscores why these cases receive such scrutiny. According to the New York State Department of Health, each year TBIs result in more than 2,200 deaths, 17,000 hospitalizations, and almost 38,000 emergency department visits among New York State residents. Nearly 157 incidents of TBIs occur in New York State daily.
What Happens During a Brain Injury IME?
Brain injury IMEs typically involve neurological and neuropsychological evaluations that are more extensive than examinations for other types of injuries. The examination generally includes several components designed to assess your cognitive and physical functioning.
Clinical Interview and History Review
The examining physician will begin by reviewing your medical records and conducting a detailed interview about your accident, injury, and symptoms. They will ask about the mechanism of injury, your immediate symptoms after the incident, and how your condition has progressed over time. Be honest in your responses, but answer only what is asked without volunteering unnecessary information.
Neuropsychological Testing
For brain injury cases, a neuropsychological IME is typically requested to assess your cognitive and behavioral functioning. According to experts, a neuropsychological evaluation involves a series of tests to identify abnormalities in intellect, reasoning, memory, attention, executive function, and processing speed.
The Brain Injury Association of America explains that during these evaluations, clinicians give you a series of tests that assess your thinking abilities, language skills, memory, mental processing, and other cognitive abilities. These tests may be administered on paper or computer and typically take several hours to complete.
Physical Neurological Examination
The doctor will also conduct a physical examination to test your reflexes, balance, coordination, vision, and other neurological functions. This may include tests of your cranial nerves, motor strength, sensory function, and gait.
Important Consideration
The examination is usually brief, lasting between 15 and 30 minutes for the physical portion, though neuropsychological testing can take several hours. The most common doctors used to conduct defense exams are orthopedic surgeons, neurologists, and psychiatrists.
Your Legal Rights During an IME in New York
While you must attend the IME to preserve your claim, New York law provides important protections to ensure the examination is conducted fairly. Understanding and exercising these rights is essential to protecting your interests.
Right to Bring a Witness
You have the legal right to bring a witness to the examination. According to New York personal injury attorneys, you can bring a friend or family member to observe and document what occurs during the examination. Legal experts strongly recommend never going to these exams alone.
Your witness should take detailed notes about the duration of the examination, what questions were asked, what tests were performed, and how the doctor interacted with you. This documentation can be invaluable if the IME report contains inaccuracies or misrepresentations.
Right to Record the Examination
New York law allows you to make audio or video recordings of the IME. This right is particularly important in brain injury cases where subtle aspects of the examination or your responses may be mischaracterized in the doctor’s report. Inform the examining physician at the start that you will be recording the examination.
Right to Receive a Copy of the IME Report
Under CPLR § 3121, you are entitled to receive a detailed written report of the examining physician’s findings and conclusions. The party seeking the examination must deliver this report to you, typically in exchange for copies of your own medical reports.
Right to Respond to IME Findings
You have the right to respond to the IME report before decisions are made regarding your case. Your attorney can challenge inaccurate findings, provide contradicting medical opinions, and ensure that the IME report does not go unchallenged if it contains misrepresentations.
Critical Warning
The medical professional conducting the IME is not your physician. They are hired by the insurance company, which means their primary interest is assessing your claim from the insurer’s perspective. IME doctors often derive significant income from insurance company referrals, raising questions about their true independence.
How to Prepare for a Brain Injury IME
Proper preparation can make a significant difference in the outcome of your IME. These examinations are designed to find weaknesses in your claim, so being prepared is essential to protecting your case.
Consult with Your Attorney First
Before attending the IME, meet with your brain injury attorney to discuss what to expect and how to handle difficult questions. Your lawyer can review the specific doctor’s background, including whether they have a history of providing opinions favorable to insurance companies.
Review Your Medical History
Be familiar with the details of your accident, your initial symptoms, and your medical treatment timeline. The examining doctor will ask detailed questions, and inconsistencies between your statements at the IME and your prior medical records can be used to undermine your credibility.
Be Honest but Concise
Answer questions truthfully but avoid volunteering information beyond what is asked. Do not minimize your symptoms to appear stoic, and do not exaggerate them in an attempt to strengthen your claim. Simply describe your actual experiences accurately.
Give Your Best Effort on All Tests
As brain injury specialists note, as long as you are honest and give a good effort, you cannot fail a neuropsychological assessment. However, insurance companies may argue that poor performance validity or symptom validity scores suggest you’re exaggerating symptoms. Many factors can produce an invalid examination besides malingering, including interference from pain, medication side effects, and depression.
Bring Your Witness and Recording Device
Exercise your rights by bringing a trusted witness and recording equipment. Inform the examining physician at the start of the examination that you will be accompanied by a witness and that you will be recording the examination as permitted under New York law.
| Do | Don’t |
|---|---|
| Arrive on time and dress appropriately | Arrive late or cancel without rescheduling |
| Bring a witness and recording device | Go to the examination alone |
| Answer questions honestly and concisely | Volunteer unnecessary information |
| Give your best effort on all tests | Exaggerate or minimize symptoms |
| Note any inaccurate statements by the doctor | Argue with the examining physician |
| Report the exam experience to your attorney | Ignore concerning aspects of the examination |
Common Issues with Brain Injury IME Reports
IME reports in brain injury cases frequently contain problematic findings that can jeopardize your claim. Being aware of common issues allows you and your attorney to identify and challenge inaccurate conclusions.
Downplaying Cognitive Symptoms
IME doctors may minimize or dismiss your reported cognitive difficulties, characterizing them as normal age-related changes or attributing them to psychological factors rather than traumatic brain injury. They may focus on a brief snapshot examination rather than the full picture of your daily functioning struggles.
Attributing to Pre-existing Conditions
Examiners often attribute your brain injury symptoms to pre-existing conditions, prior injuries, or other unrelated health issues. This strategy allows insurance companies to argue they are not responsible for your current condition.
Questioning Accident Mechanism
IME physicians may opine that the accident was not severe enough to cause a traumatic brain injury, even when your treating physicians have diagnosed TBI. They may dispute biomechanical forces or suggest that your injuries should have manifested differently if they were truly accident-related.
Mischaracterizing Test Performance
According to disability claim experts, insurance companies may argue that your performance validity scores suggest you’re exaggerating symptoms, even when legitimate factors explain your test performance.
Concluding Return to Work Capacity
IME reports frequently conclude that you are capable of returning to full work duties, even when your treating physicians have restricted your activities. These conclusions can be used to terminate workers’ compensation benefits or argue that you have not suffered lost earning capacity.
Ignoring Longitudinal Treatment Data
IME physicians may disregard months of documented treatment and symptom progression from your treating doctors, instead relying solely on their brief one-time examination to form conclusions about your condition.
How Your Attorney Can Help
An experienced brain injury lawyer can challenge IME findings by obtaining rebuttal opinions from qualified independent experts, highlighting the examining physician’s bias and financial relationship with insurance companies, and demonstrating inconsistencies between the IME findings and your documented medical treatment. Your attorney can also cross-examine the IME doctor at deposition or trial to expose weaknesses in their conclusions.
When Insurance Companies Use IMEs in Bad Faith
While IMEs are a legitimate part of the claims process, insurance companies sometimes abuse the IME system to wrongfully deny or undervalue brain injury claims. This can constitute insurance bad faith under New York law.
Recognizing Bad Faith Tactics
According to New York personal injury attorneys, in order to establish a prima facie case of bad faith, the plaintiff must establish that the insurer’s conduct constituted a gross disregard of the insured’s interests.
Case Example: Construction Worker’s Biased IME
A construction worker who fell from scaffolding and suffered a traumatic brain injury with documented cognitive impairments was sent to an IME neurologist who spent only 20 minutes examining him. Despite months of treatment records from his neurologist showing persistent memory problems, difficulty concentrating, and inability to return to work requiring complex tasks, the IME doctor concluded he could return to full duty. The insurance company used this single brief examination to deny ongoing benefits, ignoring extensive longitudinal medical evidence. His attorney successfully challenged the IME as bad faith by demonstrating the examining physician had conducted over 300 IMEs for the same insurance company in the previous year, with a pattern of consistently minimizing injuries.
Case Example: Multiple IME Harassment
A motor vehicle accident victim with post-concussion syndrome was required to attend three separate IMEs over six months with different insurance doctors. Each examination reached different conclusions, and the insurance company used the most favorable opinion to deny her claim while ignoring the other two examinations and her treating physicians’ consistent findings. The court found this constituted harassment and improper use of the IME process.
Bad faith use of IMEs may include:
- Repeatedly requesting multiple IMEs to harass or burden you
- Using the same examining doctor known to provide insurance-favorable opinions
- Refusing to consider contrary opinions from your treating physicians
- Misrepresenting IME findings to justify claim denial
- Denying coverage based solely on a biased IME without proper investigation
Legal Remedies for Bad Faith
New York law provides remedies when insurance companies act in bad faith. According to New York insurance attorneys, because acting in bad faith is considered a breach of contract, you have six years to file a lawsuit against the insurance company, with the six-year clock starting on the date the claim denial occurred.
New York courts have held that policyholders can recover consequential damages for an insurance company’s breach of the duty of good faith. These damages may include the full value of your claim plus additional compensation for the insurer’s wrongful conduct.
The Science Behind Brain Injury and IME Limitations
Understanding the medical science of traumatic brain injury helps explain why IME examinations often fail to accurately capture the full extent of brain injury impairments.
The Prevalence of Traumatic Brain Injury
Brain injuries are far more common than many people realize. The Centers for Disease Control and Prevention reports that there were approximately 214,110 TBI-related hospitalizations in 2020 and 69,473 TBI-related deaths in 2021, representing more than 586 TBI-related hospitalizations and 190 TBI-related deaths per day.
According to recent data from the National Health Interview Survey, 3.0% of Americans (3.3% of adults and 2.2% of children aged 17 years or younger) reported a TBI in the past year. People age 75 years and older had the highest numbers and rates of TBI-related hospitalizations and deaths, accounting for about 32% of TBI-related hospitalizations and 28% of TBI-related deaths.
Why Brain Injuries Are Difficult to Assess
Traumatic brain injuries present unique diagnostic challenges that make brief IME examinations particularly inadequate for assessing true impairment levels. Brain injury symptoms such as memory loss, cognitive impairment, or confusion can significantly impact daily functioning yet may not be apparent during a brief office examination.
Many TBI symptoms are subjective and depend on self-reporting, including headaches, difficulty concentrating, mental fatigue, and emotional changes. An IME physician who spends 15-30 minutes with you cannot accurately assess how these symptoms affect your daily life over weeks and months.
The Importance of Longitudinal Treatment Records
Your treating physicians who have followed your case over time are in a far better position to assess your brain injury than an IME doctor who examines you once. Treatment records documenting your symptoms, functional limitations, medication trials, and response to therapy provide a much more accurate picture of your condition than a single examination.
Treating Physician Advantages
- Ongoing relationship with the patient
- Multiple examinations over time
- Observation of symptom patterns and progression
- Treatment response documentation
- Patient history and baseline function knowledge
- Collateral information from family members
IME Physician Limitations
- Single brief examination
- No ongoing patient relationship
- Financial incentive from insurance referrals
- Limited access to complete medical history
- No observation of daily functioning
- Potential bias toward minimizing injuries
Challenging an Unfavorable IME Report and Next Steps
If the IME report contains inaccurate or biased conclusions, your attorney has several strategies to challenge the findings and prevent them from undermining your case. Taking the right steps immediately after the examination is also critical to protecting your claim.
Document Your Recollection Immediately
As soon as possible after the examination, write down your detailed recollection of what occurred. Note how long the examination lasted, what questions were asked, what tests were performed, any statements made by the examining physician, and anything that seemed inappropriate or concerning. Compare your recollection with the notes taken by your witness during the examination.
Report to Your Attorney and Continue Treatment
Contact your lawyer promptly to report on the examination experience. Describe any concerns about how the examination was conducted. Do not let the IME discourage you from continuing your prescribed medical treatment. Continue following your treating physicians’ recommendations and attending all scheduled appointments. Gaps in treatment can be used against you to argue that your injuries are not serious. Safeguard any audio or video recordings made during the examination and provide copies to your attorney.
Obtain a Rebuttal Medical Opinion
Your lawyer can retain an independent medical expert to review the IME report and provide a rebuttal opinion. A qualified neurologist or neuropsychologist can identify flawed methodology, unsupported conclusions, and bias in the IME report. The rebuttal expert can explain why your treating physicians’ opinions are more reliable and accurate.
Expose Financial Bias
Through discovery, your attorney can investigate how much income the IME doctor derives from insurance company referrals. Physicians who conduct hundreds of IMEs annually for the same insurers and consistently provide opinions favorable to those insurers can be shown to lack true independence.
Highlight Inconsistencies and Errors
Carefully review the IME report for factual errors, misstatements of your history, or inconsistencies with documented medical records. These errors can be used to impeach the credibility of the examining physician and their conclusions.
Depose the IME Physician
Your attorney can take the IME doctor’s deposition to question them under oath about their examination, methodology, financial relationship with insurance companies, and the basis for their opinions. Skilled cross-examination can reveal weaknesses in the doctor’s conclusions and expose bias.
Present Contrary Evidence
Counter the IME report with strong evidence from your treating physicians, diagnostic test results, functional capacity evaluations, testimony from family members about your limitations, and documentation of your inability to perform previous activities. The weight of evidence from multiple sources can outweigh a single biased IME opinion.
The Role of Legal Representation in Brain Injury IMEs
Having an experienced brain injury attorney represent you throughout the IME process provides critical advantages that can make the difference between a successful claim and a wrongful denial.
Pre-Examination Preparation
Your lawyer will prepare you for what to expect during the examination, review the examining doctor’s background and history of testimony, advise you on how to answer questions appropriately, and ensure you understand your rights to bring a witness and record the exam.
Monitoring the Examination Process
Your attorney will ensure the IME is conducted according to legal requirements, verify that appropriate notice was provided, confirm that the examination is relevant to disputed issues in your case, and object if the insurer requests excessive or unnecessary examinations.
Responding to the IME Report
Once the IME report is received, your lawyer will analyze the report for inaccuracies and bias, obtain rebuttal medical opinions when necessary, and incorporate effective responses into settlement negotiations or trial strategy. According to New York brain injury attorneys, insurance companies and defense counsel approach TBI cases aggressively, questioning every aspect of liability, medical causation, and damages.
Protecting Your Rights
Throughout the process, your attorney ensures that the insurance company does not use the IME process to violate your rights, harass you with excessive examinations, or gain unfair advantage in your case. If the insurer acts in bad faith, your lawyer can pursue additional claims for breach of the duty of good faith and fair dealing.
Frequently Asked Questions About Brain Injury IMEs
Can I refuse to attend an independent medical examination in New York?
No, you cannot refuse to attend an IME in New York without serious consequences. In personal injury cases, failure to attend an IME can result in dismissal of your lawsuit. In workers’ compensation cases, refusing the IME can lead to termination of your medical benefits and income replacement. However, you can object if the examination request is unreasonable or not properly noticed, and your attorney can help ensure the examination is conducted appropriately.
How long does a brain injury IME typically last?
The physical examination portion of a brain injury IME typically lasts 15 to 30 minutes. However, neuropsychological testing for brain injury cases often takes several hours to complete. The entire process, including paperwork and waiting time, may consume half a day or more. You should plan accordingly and bring any necessary medications, snacks, or other items you need for an extended appointment.
What happens if the IME doctor says I’m not injured?
If the IME physician concludes that you do not have a brain injury or that your injuries are not as severe as claimed, the insurance company will likely use this opinion to deny or reduce your claim. However, the IME report is just one piece of evidence. Your attorney can challenge the IME findings by presenting contrary evidence from your treating physicians, obtaining rebuttal medical opinions, exposing bias in the examining doctor’s background, and demonstrating factual errors or unsupported conclusions in the IME report. The ultimate decision about your case will be made by a jury or judge who considers all the evidence, not just the IME report.
Can the IME doctor perform invasive tests or procedures?
No, IME doctors in New York are generally limited to non-invasive examination methods. They can conduct physical examinations, neuropsychological testing, and review of medical records, but they cannot perform surgical procedures, invasive diagnostic tests, or prescribe treatment. The examination should be limited to what is necessary to evaluate the specific conditions in controversy in your case. If an IME doctor attempts to perform inappropriate or invasive procedures, you have the right to refuse and should contact your attorney immediately.
Will my insurance have to pay for the IME?
No, you do not pay for the IME examination. The party requesting the examination (typically the insurance company or defendant) must pay all costs associated with the IME, including the examining physician’s fees. You are only responsible for your own transportation costs to attend the examination. However, you may incur costs for bringing your own witness, making recordings, or obtaining a copy of the report.
Can I bring my own doctor to the IME?
No, you cannot bring your own treating physician into the examination room during the IME. However, you have the right to bring a witness, such as a family member, friend, or representative from your attorney’s office. This witness can observe the examination and take notes but cannot interfere with the examination process. Some injury victims choose to have a medical professional attend as their witness to better understand and document what occurs during the examination.
What should I do if I believe the IME report contains false information?
If you believe the IME report contains inaccurate statements or misrepresentations, immediately inform your attorney. Your lawyer can file objections to the report, identify specific inaccuracies in written responses, use your recording of the examination to prove what actually occurred, obtain affidavits from your witness about the examination, and present the IME doctor’s errors to the court or during settlement negotiations. This is why bringing a witness and recording the examination is so important – it provides proof if the doctor misrepresents what occurred.
Protect Your Brain Injury Claim
If you’ve been asked to attend an independent medical examination for your brain injury case, don’t face it alone. Our experienced New York brain injury attorneys can prepare you for the examination, protect your rights throughout the process, and challenge unfair IME findings that threaten your recovery.
Conclusion
Independent medical examinations are a critical juncture in brain injury cases that can significantly impact your claim’s outcome. While New York law requires you to attend these examinations, you have important rights that can protect you from biased or inaccurate evaluations. Understanding what to expect during a brain injury IME, exercising your rights to bring a witness and record the examination, and working with an experienced attorney to challenge unfavorable findings are essential steps in preserving your claim.
The insurance company’s IME doctor is not a neutral evaluator but rather a hired expert whose opinion often favors the insurer’s financial interests. By preparing thoroughly, documenting the examination process, and obtaining skilled legal representation, you can ensure that a biased IME report does not prevent you from obtaining the full compensation you deserve for your traumatic brain injury.
Remember that the IME is just one piece of evidence in your case. The opinions of your treating physicians who have followed your condition over time, objective medical test results, and testimony about your functional limitations all carry weight in determining the value of your claim. With proper preparation and strong legal advocacy, you can overcome an unfavorable IME and secure the recovery you need to move forward with your life.
