By Cory Bilton
In most personal injury cases, the plaintiff is going to be examined by a defense medical expert during the course of the litigation. Most courts have discovery rules or rules of evidence regarding the defendant’s right to physically examine the injured plaintiff. But prior to filing suit, the tortfeasor has no legal right to require the plaintiff to submit to an examination of any sort. Any negotiating that occurs prior to litigation is usually based on the medical records and bills that the plaintiff or her attorney submits to the insurance company to review.
However, the situation is a little different when the plaintiff is making a UIM claim against her own policy. The reason for this is that most insurance agreements state that an insured must submit to a medical exam at the request of the insurer (called an “IME” by some, for “independent medical exam,” although they are performed by doctors chosen and paid by the insurer). For example, in the standard policies of both Maryland and Virginia, there is language requiring an insured to, “Submit, as often as we reasonably require: … To physical exams by physicians we select. We will pay for these exams.” The policy indicates that a failure to comply with this duty (or any of the duties listed) will void the coverage. It is not clear whether this policy provision is enforceable. The local case law on pre-litigation medical exams performed by UIM carriers is understandably thin, because commencing litigation to enforce the policy language triggers discovery rules about medical examinations. However, the following statutes and cases can provide the basis for a variety of arguments on pre-litigation medical exams.