Pre-litigation Medical Exams by UIM Insurers in Maryland and Virginia

By Cory Bilton

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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.


The overarching rule in Maryland appears to be that the insurer’s demands about the medical examination must be reasonable.  This rule comes from the Maryland Court of Special Appeals decision in Smart v. State Farm, 730 A.2d 690 (Md. App. 1999).  In the underlying case, State Farm demanded a pre-ligitation medical examination of their insured, Barbara Smart, after she made an uninsured motorist claim on her policy.  State Farm wanted Dr. Ammerman to examine Ms. Smart at a DC location, which would have made Dr. Ammerman unreachable by subpoena for any resulting trial in PG County.  Therefore, Ms. Smart’s attorney demanded that State Farm relocate their medical exam to Maryland.  In ultimately settling the dispute, the court stated, “As a matter of fundamental fairness, we conclude that the right to require a medical examination contained in the contract of insurance should be construed by the application of a reasonableness rule . . . .”  Although the court specifically declined to answer either of the specific issues raised on appeal, the language of the decision indicates that as a threshold matter, the UM/UIM insurer’s demand for a medical examination must be reasonable.

Another argument for plaintiff’s counsel to make as a result of the Smart decision relates to placing conditions upon the examination.  The court in Smart clearly indicated State Farm’s argument that Ms. Smart voided her UM coverage by refusing to submit to a medical exam was not persuasive because Smart did not refuse to submit to the medical exam, nor did she refuse to be examined by State Farm’s Dr. Ammerman.  The insurance policy itself was unclear on the other specific requirements of the examination.  Therefore, the court hints that the plaintiff cannot void her own coverage by failing to agree to conditions placed upon the exam, or with specifics outside the scope of the insurance policy.  This opens the question of whether the insured can impose conditions of her own upon the medical examination.  I think the interpretation provided in Smart allows for some room for negotiation.


Virginia provides another avenue to argue about pre-litigation medical exams because the statute establishing uninsured motorist coverage suggests that the insured is protected from such a policy-imposed duty.  Virginia Code § 38.2-2206(H) requires that a UM/UIM policy cannot require an insured to submit to arbitration, cannot require anything of the insured except the establishment of legal liability, and can do nothing to restrict or prevent an insured from employing a lawyer or instituting proceedings.  Despite this statute, the standard form Virginia auto insurance policy contains the language quoted above, requiring an insured to submit to a medical examination upon request.  This seems directly at odds with § 38.2-2206(H)’s protections for the insured.

The policy language likely survives because it remains applicable to other forms of coverage offered under most auto insurance policies.  One case that deals with this issue is Allstate v. Eaton, 448 S.E.2d 652 (Va. 1994).  The facts of the case involved an injured woman who made a claim against her own insurance for MedPay coverage.  Allstate argued that Ms. Eaton was required to submit to a pre-litigation medical exam based on policy language very similar to what is quoted above.  Ms. Eaton was reluctant to do this because the circumstances surrounding the case gave her the indication she would later be filing a UM claim, too.  The Virginia Supreme Court held that the limitations in § 38.2-2206(H) unambiguously refer only to UM coverage and not to MedPay coverage.  Meanwhile, the court noted, the MedPay statutes, §§ 38.2-2201 and 2202(A) do not have the same restrictions.  So although this clearly indicates that a person making a claim under her MedPay coverage would be required to submit to a medical examination, it likewise reinforces that such a requirement cannot be imposed upon an insured making a UM/UIM claim.

Arguments about whether an insured must submit to a medical examination to make a UM/UIM claim are generally short-lived.  Either the insured submits to the exam or files a lawsuit to trigger the local jurisdiction’s discovery rules.  But it’s good to remember there is some middle ground here.  Where it appears that a client will be required to submit to a pre-litigation medical exam, there is room to discuss the terms and conditions that will govern the exam, and how it may be used later in a client’s case.  In the right circumstances, finding mutually agreeable conditions on the medical exam may save time, money, and potential headaches in the future.

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