When discovery is well under way, including the deposition of the plaintiff and his treating physician, the defense decides it wants to conduct its own medical examination.

Under Ill.Sup.Ct.Rule 215(d), the court may order an "impartial physical or mental examination of a party whose mental or physical condition is in issue, when in the court’s discretion it appears that such an examination will materially aid in the just determination of the case."

Generally, it is referred to as an independent medical examination, a highly misleading and erroneous term. A more accurate term would be an "adversarial medical exam" because all too often the opponent brings in a hired gun aimed at eliciting information about the plaintiff with the intent to damage his or her case.

The problem occurs if answers to questions the doctor asks during he exam are used against the unsuspecting party with the spin the defendant’s doctor wishes to put on them.

Furthermore, not only does this practice smack of unauthorized waiver of the physician-patient privilege, it also is tantamount in taking a second unauthorized deposition of a party. I have seen savvy physicians, who are too often on the payroll of defense counsel, attempting to ask questions in a way that elicits misleading answers from a person who probably has had no contact with the legal process.

The statute as it now stands lacks any provisions permitting oral requests during the exam, much less any provision for obtaining adverse evidence. Certainly, a plaintiff’s attorney in Illinois can and should be present during such exams; however, just how an expert intends to interpret the information may not become apparent until trial, long after discovery is closed.

Even the omission of saying something to such a doctor, whom the patient has just met, can have some serious consequences. Take, for instance, the following hypothetical:

Question: "Was the back pain a problem for the patient in his work environment?"

Answer: "She did not tell me that."

The objectivity of these exams has been grappled with by the courts in Connecticut. Most recently in Moore v. Minton, unreported decision, (Conn. Super. Ct., decided Oct. 7, 1998), the plaintiff objected to the defendant’s request for a medical examination on the basis that it would not be independent because the doctor "is regularly engaged in examining personal injury plaintiffs on behalf of defendants, and workers compensation claimants on behalf of respondents" (decision at p. 1).

As a result, plaintiff contended that the value of her case would be undermined because the physician "is conservative in his evaluation of disability . . . " (decision at p. 4).

The court employed a balancing test of one’s statutory right to object to the exam against the need to prevent frustration of appropriate discovery efforts with a good faith reason. The court resolved the issue by sustaining plaintiff’s objection provided that she make herself reasonably available to be examined by one of the 10 other qualified physicians plaintiff listed.

Illinois courts would likely utilize the same approach. The scope of such an exam came under fire in recent years in Illinois as to whether a plaintiff should be compelled to undergo invasive, potentially harmful examinations as a discovery device. The Illinois courts resolved the issue by using a balancing test: weighing probative value of the proposed examination as it relates to the litigation against the level of risk to the plaintiff. Stasiak v. Illinois Valley Community Hospital, 226 Ill.App.3d 1075, 590 N.E.2d 974 (3d Dist. 1992).

Once the plaintiff objects to a Rule 215 motion based on the risk of harm or death and supports it by proper medical testimony or evidence, the burden shifts to the defendant to establish by competent medical testimony or evidence that the requested examination has a clear probative value to the litigation’s issues and that there is a minimal level of risk to the plaintiff.

But rather than have trial judges make the determinations regarding the objectivity of such exams on an ad hoc basis or leave such complicated medical issues for a jury to sort out, I submit that, as a matter of routine, the parties should enter into a stipulation providing for the appropriate information to be asked of a plaintiff during such an exam.

If the parties are unable to agree, then the motion court can make a determination about the proper level of inquiry required for the specific examination.

Ultimately, though, I suggest guidelines might be considered by the Illinois Supreme Court Discovery Rules Committee. An agreed protocol should be laid out that requires all communication between a plaintiff and an examining physician of the defendant’s to be in writing. It should state the information that is proper for an adversary to seek and would require anything further from an opponent to be submitted in writing prior to the exam.

Therefore, if it becomes clear from the record that certain questions will need to be answered at the defendant’s medical examination, they can be submitted before the exam as interrogatories to the patient so that their propriety and scope may be properly and timely examined by his attorney.

In this way, the playing field becomes more level for all participants; and the plaintiff is not lulled into giving verbal responses that can be misinterpreted at trial.