Independent medical exams can fuel mistrust
From WorkBoat Magazine October 2014

By Tim Akpinar


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.
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This case tested the limits on a right of injured passengers to have their shoreside cruise line doctor's
medical exam videotaped.
See Cruise Ship Medical Care - After the Infirmary.