Plaintiffs in personal injury lawsuits are often required to submit to physical examinations of their injuries by doctors chosen by the defense. These exams are sometimes referred to as “independent medical exams,” but make no mistake: The doctor is being paid by the defense, and that is almost certainly how their opinion will skew.
Essentially, any time a plaintiff’s physical or mental condition is in controversy, any other party can serve notice and direct that party to undergo a physical or mental examination by a designated provider.
This was the situation in the recent case of In re H.E.B. Grocery Co., L.P., weighed by the Texas Supreme Court.
Plaintiff reportedly suffered a trip-and-fall injury at one store and then some time later, falling merchandise injury at another store.
According to court records, plaintiff alleges he tripped and fell over a metal plate that was unsecured in front of a grocery store cart corral in defendant’s parking lot. As a result of that fall, he reportedly sustained injury to his face, neck, arm, knee and shoulder. He underwent a series of medical treatments as a result, including two spinal surgeries. His medical expert has opined he may require a third spinal surgery.
After this injury and after plaintiff had filed his lawsuit, he suffered a second injury at another store. In that case, he reportedly suffered neck and head injuries after an employee carrying rolls of artificial turf dropped one onto his head. Plaintiff subsequently filed a lawsuit against that grocery store as well.
Defendant in this case retained an orthopedic surgeon to testify as a medical expert on its behalf. This doctor provided a detailed opinion regarding plaintiff’s injuries, which were based solely on review of patient’s medical records. Although he stated he normally examines patients before providing such a report, he did not in this case. However, after that report was filed, which indicated plaintiff had a pre-existing spinal condition that was the source of his injury, defense filed a motion asking the court to compel plaintiff to submit to an independent medical exam with its expert witness.
The court denied the motion, finding the store had not provided sufficient evidence to show it was entitled to this relief.
Defense appealed, and the Texas Supreme Court reversed. The court noted first of all that the extent of plaintiff’s injuries – specifically to his head and neck – are in controversy in this case. So too is the cause of those injuries.
Plaintiff countered that the doctor was able to form an opinion without requesting or conducting an exam, so there was no need for the exam. However, the court stated the fact that the expert witness had already formed an opinion didn’t undermine the relevance of the exam or extinguish defendant’s right to it.
The court noted that plaintiff intends to prove causation of his injuries and also damages via expert testimony, and his expert had already conducted a physical exam. The defense should be afforded the same opportunity, the court ruled. Failure to extend that same access, the court decided, would disadvantage the defense because it would allow plaintiff to call into question the credibility of the doctor’s testimony in front of the jury.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
In re H.E.B. Grocery Co., L.P., May 27, 2016, Texas Supreme Court
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