Opinion

Hergott: Personal injury case DMEs all about damage control

With a legal practice dedicated to a very narrow area of law, I often feel like a broken record when I am giving advice to my clients.

The same issues and procedures come up again and again and again because each case is so very similar.

I have joked that I should make a short video for each piece of advice and set my clients up in my boardroom to watch it.

The more I joke about it, the more I’m thinking it could be a really good idea.

If I feel like a broken record, I probably sound like one.

With recorded videos, I should be able to make them more interesting than a broken record.

Perhaps I could include dancing girls (dancing guys, of course, for my women clients).

One broken record consultation is advice I give to clients who will be interviewed and examined by a medical specialist the insurance company has hired to help defend the claim.

I call that interview/examination a Defence Medical Examination or a DME.

DMEs occur regularly in personal injury cases. I don’t like them, but I will readily admit that they add fairness to our justice system.

I don’t like them because it feels like sending a lamb to the slaughter to send an injured crash victim to an insurance company funded “hired gun” who is paid to come up with medical opinions that will hurt the case.

The fairness comes from giving the insurance company an opportunity to independently verify physical findings and to explore alternate medical opinions.

There’s no way the DME could possibly assist the case. The medical opinions resulting from the DME belong to the insurance company, and if they are favourable to my client they certainly will not share those opinions with me.

My advice, therefore, is not about making the most of the DME, it’s all about damage control.

The only damage I am concerned about is damage to my client’s credibility.

I have written several times about how important credibility is to a personal injury claim, particularly given the fact that most injuries sustained in car crashes are invisible, unverifiable by x-rays, CTs or MRIs.

The only reason anyone knows you hurt is because you tell them.

Successfully attack your credibility and your case goes down the toilet.

If you fail to fairly describe what your physical condition was before the crash, the DME specialist will note that in the report.

The defence will use that failure to argue that nothing coming out of your mouth should be believed.

This problem can be avoided by reviewing your clinical history before a DME.

There is no need to memorize anything. A simple review will suffice.

Then, when being interviewed, give honest and forthright answers.

The other minefield is the physical examination.

If you fail to cooperate fairly during the physical examination, that will also be noted and used against you.

Medical specialists can quite easily see when patients fail to give full effort or have exaggerated pain reactions during the assessment.

This can be avoided by simply doing your best and being honest.

There is a common thread in all of the legal advice I give to my clients.

It applies, without exception, to every circumstance.  It’s a lesson our parents tried to teach us.

Simply do your best and be honest.

This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer  at Hergott Law in West Kelowna.

paul@hlaw.ca

 

 

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