Independent medical examinations (IMEs) are second opinions ordered by insurance carriers; defense medical examinations (DMEs) are ordered by defense lawyers. Over the last few decades, doctors have reported to the authors in all 50 states that the process has eroded to one of pandering to the payer or carriers. Therefore, it is incumbent on the treating doctors to maintain their reputation as evidence-based providers to rebut any improper IME based upon the IME/DME report facts. Also, courts in many states have ruled that the last report has the greatest “weight” when rendering a decision. Lastly, credentials matter with opinions and rebuttals on the integrity of the reports.
What Constitutes an Improper IME
An improper IME is a record of partial truths or untruths (lies). If left unanswered, it is memorialized in court and deposition transcripts in perpetuity for anyone to retrieve as public record. Local lawyers often read these transcripts for future cases, contributing to the lawyers’ opinion of you. Allowing the IME doctors to get the last word refutes your findings, fails to get you paid or the care the patient needs, can peg you as an “overutilizer” with poor clinical skills, and can cause a disgruntled patient to initiate a lawsuit. It can also be used against you in future proceedings of fraud or other allegations.
Citing evidence-based literature to defend your treatment is not enough; you must create an argument supported by the case or state regulation of the practice of chiropractic or medicine. It is best if you promise to investigate licenses or insurance improprieties, if applicable. In short, you become the “whistleblower” and put the IME/ DMEs — the “middle man” companies and the carriers — on notice that you will not tolerate anything short of the facts and the truth of the case.
Suppose there are omissions or partial reporting of the truth. In that case, sample language could be, “Upon reading Dr. Sample’s IME report, he has performed a physical examination, albeit brief, but he has not rendered a full record review, as I will detail. Dr. Sample is entitled to his independent conclusion, but it must reflect a complete set of material facts, not partial reporting. As will be discussed, Dr. Sample has omitted and misrepresented the material facts of the documented findings of Mrs. Patient.
(sample regulation from Utah)
Based on his omitting specific material facts available to him, he might violate the Utah statute 26-20-3: “False statement or representation relating to medical benefits.2 A person may not make or cause to be made a false statement or false representation of a material fact for use in determining rights to a medical benefit. By apparently omitting pertinent information from my chart notes and findings, he might very well violate the State of Utah statute 76-8-504: Written false statement. A person is guilty of a class B misdemeanor if: Knowingly creates a false impression in a written application for any pecuniary or other benefits by omitting information necessary to prevent statements therein from being misleading.”
Rebuttals are a combination of an academic essay and a legal argument.
In United States federal law, the Daubert standard is a rule of evidence regarding the admissibility of expert witness testimony. This is the standard used by trial judges to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning that can properly be applied to the facts at issue.
In the federal court system, the Daubert standard replaced the Frye standard, which is still used in some states to determine the admissibility of scientific evidence. It provides that expert opinion based on a scientific technique is admissible only when the technique is generally accepted as reliable in the relevant scientific community.
The court is also responsible for determining whether the specialized knowledge or testimony of the expert is based on the application of reliable theories or techniques. Keep in mind; the court does not address the conclusions reached by the expert but rather only the methodologies relied upon. To that end, Daubert identified four factors that the court may consider in assessing reliability:
1. Whether a theory or technique can be and has been tested.
2. Whether a theory has been subjected to peer review and publication.
3. Whether a “particular scientific technique” has a known or potential rate of error.
4. Whether the theory or technique enjoys general acceptance within the “relevant scientific community.”
Once a scientific technique is addressed, the doctor must be qualified as an expert in most states that is termed voir dire. A voir dire hearing determines if you are an expert in the field you are opining based upon your credentials. This goes for both the IME/DME and you.
The goal of performing a rebuttal is to have the truth be the last word in the record. To allow the truth to prevail, your rebuttal must be accurate, logical, and legally defensible. The report must be absent of inflammatory statements or emotional reactions unless you intend to lose the argument and damage your reputation. The key points in your rebuttal should include a statement of the counterargument, a statement of your position and why it differs from the counterargument, and evidence to support your position.
One common tactic of the IME is to list “medical records reviewed” in the report and state an MRI or EMG results reveal a disc herniation and radiculopathy. The IME then fails to include these results in the report and typically diagnoses strain/sprain.
Ruth Jackson, MD, a prominent researcher in the study of traumatic spinal injuries, wrote in her book, The Cervical Syndrome:
Strains do not require extensive treatment. The symptoms subside within a few days to three weeks and leave no residual disability. If the symptoms do not subside at the end of three weeks, the patient has suffered a more serious injury, (p. 332)
By omitting the MRI result and offering strain/sprain as a diagnosis, they also omit significant literature on the long-term effects of strain/sprain. This effectively renders their diagnosis inaccurate and incomplete; this is substandard and possibly a licensure violation.
In their attempt to hide behind obfuscated language in their reports and reporting of partial truths, the IME will indicate the chart notes or the patient relates they had an MRI; the IME will state, “The reports were not contained in the records that are reviewed.” The admission of an omission puts a dent in the IME’s report and possibly makes the entire report invalid. Reviewers are responsible for making sure they have all the records, and the insurance company’s responsibility is to provide those records to render an accurate, reasonable, and factual opinion.
..."they get paid to render those conclusions, and they will often be fired if they do otherwise."...
Often the IME’s opinion is any disc protrusions are preexisting and not related to the MVA in question. A helpful reference is Freeman et al. (2009), “When these causal elements are met, clinicians can assert causation on a ‘more probable than not’ or ‘reasonable probability’ basis. The patient didn’t have any symptoms before the MVA and had them after the MVA.” This is also consistent with Del Grande et al. (2012), who reported that radicular symptoms after an accident and a herniated disc confirm a causal relationship.
A big issue with IMEs is when they deny care retrospectively. In September, Dr. IME evaluates a patient and recommends that the patient only required 20 visits and subsequently achieved MMI in January, exposing you to nine months of unpaid care.
Absent a crystal ball, Dr. IME has no way of accurately assessing the patient’s condition and future needs nine months ago. Typically, Dr. IME provides no plausible rationale contrary to the medical necessity established at regular progress evaluations for the date he asserts recovery was reached other than “I feel” or it is his “opinion.” Here is where your notes and timely reevaluations allow you to prevail.
Recovery is based uniquely on the patient’s progress. Suppose Mr. Patient was examined at regular intervals, and medical necessity was established at each examination based on patient symptoms, clinical findings, and progress evaluations. In that case, Dr. IME’s opinion of an arbitrary date when treatment should have ended is baseless. The IME/DME offers no plausible rationale contrary to the medical necessity established at regular progress evaluations.
Another common argument stated by Dr. IME is the patient should have been better in four months post-MVA with no rationale or support other than “I feel.” This goes back to the previous statement of no clinical support of the opinion. Your evaluations must document why more care is necessary, based upon a combination of clinical findings, bodily injuries, and potential functional losses. This is not specific to personal injury or workers’ compensation; it must be a consistent standard in your documentation.
Tanaka et al. (2018) tells us that the patient complains of neck pain and limited range of motion after several hours to a few days post-MVA because of the induced synovitis of the cervical facet joints. Schofferman et al. (2007) states 20% of patients who develop chronic pain experience a delay in time between the collision and the onset of pain (up to four months). Ailliet et al. (2018) reported that 95% of chiropractic patients for chronic pain show marked improvement at 12 months.
The severity of property damage is not a reliable predictor of injury or outcome in low-speed collisions (Schofferman et al. 2007). Minimum vehicle damage means the vehicle did not dissipate the energy of the impact. An abundance of studies concern the fallacy of “no crash, no cash.” Minor impact soft tissue (MIST) protocol for prediction of injury does not appear to be valid. Centeno et al. (2005) cites 63 references and reveals 17 years postMVA patients have a long-term disability from serious neck injuries resulting from high-energy but low-damage, low-delta-V collisions. “Significant joint and ligament injuries occur at low speeds.” “There was no connection between delta-V and injury risk.” The vast majority of work published does not support MIST.
Concerning chronicity from MVA’s, Nolet et al. (2019, state, “Overall, the evidence suggests that exposure to a neck injury in an MVC more than doubles the risk for developing future neck pain.”
Debois et al.(1999), Panjabi et al.(2006), Edgar (2007), and Rydman et al.(2019) state that preexisting arthritis disposes the patient to spinal cord injury with less trauma since there is less room around the spinal cord when compared to a healthy patient. Preexisting arthritis leads to increased cervical damage in whiplash. One of the underlying mechanisms of WAD may be that trauma triggers a painful clinical manifestation of underlying, previously asymptomatic, cervical facet joint degeneration.
Why are the unethical IME/DME doctors not rendering a complete set of facts, omitting findings, solely using strain/sprain as a diagnosis, rendering conflicting conclusions to their findings, commenting on significant MRI or other results but ignoring those findings in their diagnosis? The answer is simple; they get paid to render those conclusions, and they will often be fired if they do otherwise. That is the author’s direct experience when working for defense IME firms.
The best solution for combatting partial truths, omissions, or lies (fraud) is to be the whistleblower and report these infractions to the state licensure boards. Every state has a set of rules and regulations regarding reporting in the medical-insurance sector with penalties for infracting these rules. Those often come with the loss of license, misdemeanors, or it is part of their penal code, as in the cases in Michigan. All the patients and the providers caring for them want is the truth.
Dr. Ronald Manoni is a 1981 graduate of NYCC. He currently serves as adjunct assistant professor of clinical sciences at the University of BridgePort School of Chiropractic, as an ■ **IME Consultant, and as coordinator for the US Chiropractic Directory.
Dr. Mark Studin is the founder of the Academy of Chiropractic and the Doctors PI Program. He teaches chiropractic and medical at various levels and creates strategic business strategies for chiropractors, medical doctors, hospitals, and lawyers nationally. Reach Dr. Studin at [email protected] or 631-786-4253.
References:
1. Jackson, R, 1958. The Cervical Syndrome. Charles C. Thomas Pub. Ltd, 2nd edition.
2. Freeman, M.D., Centeno, C.J., Kohles, S.S. (2009) A systematic approach to clinical determinations of causation in symptomatic spinal disc injury following motor vehicle crash trauma. Physical Medicine & Rehabilitation, Volume 1, Issue 10, Pages 951-956.
3. Del Grande, Filippo, Timothy P. Mans, and John A. Carrino. “Imaging the intervertebral disk: age-related changes, herniations, and radicular pain. ” Radiologic Clinics 50.4 (2012): 629-649.
4. Tanaka, N, Atesok, K., Nakanishi, K., Kamei, N, Nakamae, T., Kotaka, S., & Adachi, N. (2018). Pathology and treatment of traumatic cervical spine syndrome: whiplash injury. Advances in Orthopedics. 2018, 4765050. https: doi. org/10.1155/2018/4765050.
5. Schofferman, ./., Bogduk, N, Slosar, P. (2007) Chronic whiplash and whiplash-associated disorders: an evidence-based approach, Journal of the American Academy of Orthopaedic Surgeons: Volume 15 - Issue 10 -p 596-606.
6. Ailliet, L., Rubinstein, S. M., Hoekstra, T., Van Tulder, M. W., & de Vet, H. C. (2018). Long-term trajectories of patients with neck pain and low back pain presenting to chiropractic care: a latent class growth analysis. European Journal of Pain, 22(1), 103-113.
7. Centeno, C. ./., Freeman. M., Elkins. W.L., Pain Research and Management. (2005). A review of the literature refuting the concept of minor impact soft tissue injury. Pain Research and Management, 10(2) :71-4.
8. Nolet, PS., Emary, P. C., Kristman, V.L., Murnaghan, K., Zeegers, M. P., Freeman, M. I)., Exposure to a motor vehicle collision and the risk offuture neck pain: a systematic review and meta-analysis. Physical Medicine & Rehabilitation, April 25, 2019 [epubj.
9. Debois, V, Herz, R, Berghmans, I)., Hermans, B., & Herregodts, P. (1999). Soft cervical disc herniation. Influence of cervical spinal canal measurements on development of neurologic symptoms. Spine, 24 (19), 1996-2002.
10. Panjabi, M. M., Maak, T. G., Ivancic, P. C., Maak, T.G., & I to, S. (2006). Dynamic intervertebral foramen narrowing during simulated rear impact. Spine, 31(5), E128-E134.
11. Edgar, M. A. (2007). The nerve supply of the lumbar intervertebral disc. The Journal of Bone and Joint Surgery, British Volume, 89 (9), 1135-1139).
12. Rydman, E., Kasina, P., Ponzer, S., Jarnbert-Pettersson, H. (2019). Association between cervical degeneration and self-perceived nonrecovery after whiplash injury. The Spine Journal, 19 (12), p. 1986-1994.
