Academy of Chiropractic’s
Lawyers PI Program
IME & Peer Review Rebuttals #21
From the Desk of:
Mark Studin DC, FASBE(C), DAAPM, DAAMLP
"Including IME Rebuttals
in Your Narrative"
A Critical Breakthrough in Narrative Reporting
Handling IME's has become a critical component of report writing. Over the last few years, I have chronicled the importance of refuting and rebutting what you feel is an inappropriate independent medical examination and I have been often asked where you should place these rebuttals. To be a little redundant, you cannot let the independent medical examiner or IME have the last word if that last word appears ingenuous, incorrect, inflammatory or designed to reach a desired conclusion by omitting critical patient findings.
Typically, the IME rebuttal is done in an independent document specifically designed to rebut the IME and the list of facts on any inappropriate documentation. However, when writing a narrative, it is consistent, usual and customary to include all other doctors' opinions and that includes both the treating doctors and IME's.
A sample of including other doctors opinions would go like this:
The following reflect records available for review
Joseph Smith MD evaluated Mrs. Lopez on 1-29-2009 and concluded the following diagnosis:
- Post Head Contusion
- Post Traumatic Headaches
- Cervical Radiculopathy with spasm
- Lumbar Radiculopathy with spasm
- Derangement of the right shoulder
- Derangement and pain of the right knee
- Bilateral shoulder pain
- Right shoulder sprain
Karen Jones evaluated Mrs. Smith on 1-29-2009 and concluded the following diagnosis:
- Cervical and lumbar radiculopathy
- Thoracic and lumbar subluxations
- Post traumatic headaches
The above example is for treating doctors. In the following example, you can see what would be written for the IME doctor should he/she be the next treating doctor in chronological order. The IME comments could look like this:
Arthur Smith MD, Orthopedic Surgeon evaluated Mr. McDonald on 11-27-2012 and concluded the following diagnosis in an independent medical evaluation:
- .Causally related sprain/strain of the cervical spine with myofascitis of the left trapezius muscle
- Causally related sprain/strain of the lumbar spine, resolved
General: When reviewing additional medical records in an attempt to acquire additional information to conclude an accurate diagnosis, prognosis and potential treatment plan, I pay careful attention to those reports with different recommendations than I conclude. I want to ensure that both myself and the other doctors are considering all pertinent records relevant to the condition to Mr. McDonald
#1: Dr. Smith does not comment in his history taking that Mr. McDonald complained of jaw pain. This is partially suggestive that a language barrier existed during this examination as she consistently made that complaint to every doctor, including Dr. Robinson, an independent medical evaluator 1 week earlier.
#2: Dr. Smith in his independent medical examination has access to all previous records, yet he omits any references to Mr. McDonald's facial or TMJ issues. In addition, he omits any reference to TMJ MRI's, which is integral to concluding an accurate diagnosis in this case. At the very least, he is bound by his license to comment on all aspect pertinent to his patient.
#3: Dr. Smith acknowledges reviewing Dr. Jones's follow-up office notes on June 11, 2012, where he specifically states the following diagnosis and recommendation:
- Pain in the left shoulder
- Swelling on the left side of the face
- Pain in the left upper arm
- Low back pain and left sciatica
He recommended a consultation with an oral surgeon
However, Dr. Smith omits any reference to a clinically significant factor in his patient. Please note that Dr. Smith is held to the same standard of patient care in a third party ordered evaluation as he is for his private patients as ruled the Third Department Appellate Division ruling in the Matter of Kirschner v. Mills (274 A.D.2d 786, 711 N.Y.S.2d 65 (2000).
#4: Dr. Smith comments on "Asymptomatic disc bulges" and research and correlates those bulges possibly not being of traumatic origin. By definition disc bulges are synonymous with degeneration and are never from trauma unless the images were obtained approximately 12 months post trauma. The issue is not the origination of the bulge, but the risk factor those bulges present with subsequent trauma as was the case with Mr. McDonald. I refer to the indexed peer reviewed article referenced above by García-Cosamalón, Del Valle, Calavia, García-Suárez, López-Muñiz, Otero and Vega (2010). By stating the bulges are not related to trauma is a "truism" through definition and an apparent tactic to obfuscate the facts of the case.
#5: Dr. Smith states "Available for Review" and writes a lengthy list of records. Whoever ordered this examination actively choose not to provide Dr. Smith with any records directly related to the TMJ issue, although references of facial and jaw pain were in
Although the above comment in this example is quite long, not all IME rebuttals need to be this long or detailed. However, if you are making your case, it had best be thorough and accurate with no inflammatory statements or emotional comments. Words like "asshole" should never find their way into this report or any from your office. Although I am being inflammatory in my example (and very sarcastic), I realize the emotions that reading an improper IME report can bring up. I have been there and so have most of you for most of my career and when we have the opportunity to fire back, we often unleash years of frustration in one report. I urge you to please restrain yourself, stick to the facts and be very narrow in your comments because if you are explosive, it will come back to "bite you in the butt."
The following example is an IME citation where I have no issues with what the doctor reported. I feel this doctor did an honest and ethical independent evaluation and I have gone on the record before, as I will now, to say that I fully support the IME system if done with integrity. The following is the example:
John Smith MD, Orthopedic surgeon evaluated Mrs. Smith in an independent medical evaluation on 1-18-2013 and concluded that she has recovered from all injuries allegedly sustained as a result of the 1/29/2009 accident.
I have nothing to say about the above comment and conclusion of Dr. Smith because when reviewing his report, I found he did a complete evaluation and commented on all outside testing and reports. Therefore, he is entitled to his conclusion. It is now up to me to do a better job in articulating the conclusions so that my opinion will prevail.
The last six reports I have done in this format have gotten overwhelming positive feedback from the legal community because dealing with improper IME's has been an impossible battle to fight without our words. It is my goal to level the playing field and have the truth win the day based upon detailing all findings and ensuring that every doctor, either treating or IME, discusses every result. Be sure to share with the attorneys that you work with, either plaintiff or defense, that it is your usual and customary business practice to include this level of documentation in your reports.