An article that appears on our site today, written by Merrilee Harrell of NWCDN affiliated Alaska law firm Russell, Wagg, Gabbert & Budzinski, has prompted a question in my mind. Ms. Harrell writes of a decision by the Alaska Workers' Compensation Appeals Commission that will now prevent claimants from recording or having counsel present during Employer Medical Exams ordered under Civil Rule 35 of Alaska regulations.

Ms. Harrell does an adequate job of explaining why the court ordered Rule 35 EME’s differ from those conducted under AS 23.30.095(e) of the Alaska Workers' Compensation Act. I will let you read her article here for that detail, mostly because I lack the intellectual ability to comprehend it, and wholesale cutting and pasting is for some reason frowned upon.

No, my point is focused on the decision itself, where the commission determined that allowing the exam to be recorded could “have a chilling effect on otherwise reputable physicians performing medical examinations.” The Commission apparently also cited a survey of SIME physicians that indicated “a significant percentage of the physicians surveyed would decline to perform evaluations if they were required to allow the evaluation to be witnessed and recorded”. In other words, the Commission decided it would be difficult to find reputable doctors to perform these examinations if claimants were allowed to have witnesses, or record their work.

My question is: What’s up with that?

I am not a doctor, but I am hoping some will weigh in here and enlighten me. Perhaps defense counsel might be able to do the same. Why would a reputable doctor performing a reputable exam refuse to allow a witness or recording of that exam? Is it that certain aspects of our communication and interaction cannot be adequately recorded via audio, and therefore manipulated in court? Why no witnesses? What is the downside to this for the doctor? What problems does it present for the defense in the course of a legitimate and responsible exam?

I am not an opponent of IME’s, although I recognize that humans are not perfect, and bad apples can exist in every basket. I’ve written previously about an encounter I had at a Florida conference with a physician that had just moved to the state. He only performed IME’s, and although he had never met me, happily shared how much he loved doing them for one particular carrier, because “I only have to write whatever they want to hear, and they pay me $1,500”. (This was about 10 years ago – I have no idea what an IME costs today).  Now, I don’t believe the carrier, a large nationally known name, intentionally found a doctor willing to lie his ass off. I think they found a doctor who issued opinions friendly to their cause, and that served their needs. The fact that he was a flaming asshole willing to screw innocent people to fatten his wallet and destined to burn in hell was not relevant.

I would surmise that he would refuse to be recorded during his exams. If they sent me to him I would want 60 Minutes to come along and record that session.

To me, refusal to allow a witness or a recording leaves an air of suspicion, a perceptible stain on the process. Why would “otherwise reputable” physicians refuse to be recorded, unless it would otherwise reveal them as un-reputable? 

I really am asking as much as I am surmising. I don’t get it. Personally I think all medical encounters should be recorded, simply because the patients normally forget half of what is said, or what their instructions were. Even though an IME, or in this case, EME, is not instructional in nature, I still don't see the issue or objection.

There may be legitimate reasons. C’mon doctor, give me a clue. What’s the deal in recording you?

Leave a Reply

Your email address will not be published.