Fruit of the Poisonous IME: Avoiding IME Preclusion

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Independent medical examinations are often the only evidence a carrier can rely on when litigating medical issues. As much as avoiding a situation where an IME is precluded for not complying with the strict requirements of Section 137 is ideal, from time to time it happens, and it is best to have a plan for moving forward. If the medical issue is ongoing, such as degree of disability or need for further treatment, the best thing to do is to schedule another IME as soon as possible.

A recurrent problem that often goes overlooked in scheduling the next exam is that the IME report that was precluded must be eliminated from the record, so as not to taint future medical evidence. This concept can be thought of as “fruit of the poisonous IME.” This is a theory taken from criminal law, where once a piece of evidence has been thrown out by a judge, any evidence derived from that stricken evidence is also “poisonous” and cannot be considered.

Once an IME has been precluded, it has to be thrown out to prevent “poisoning” further evidence. This means that the next IME cannot review or refer to the precluded IME. This is often overlooked, but can be prevented in a number of ways. First, the safest way to ensure nonuse of the precluded IME is to schedule an exam with a different consultant. A new consultant is less likely to refer to a prior examination or report. Second, clear communication should take place with the IME vendor in that the precluded IME cannot be sent as part of the medicals and cannot be listed in medicals reviewed. If the precluded IME is with a preferred consultant or no one else is available for another exam, the prior consultant can be used again, just simply take the precautions to make sure the doctor does not review the precluded IME report.

Taking these extra precautions ahead of time prevents time and cost waste, and lessens the chances that the IME report will again be precluded.

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