There are Federal Rules of Civil Procedure by which courts in the United States operate. We’ll focus singularly on Rule 35 – physical and mental examinations. The Federal courts establish minimal rules, and states are allowed to do more, but not less, guiding state and lower courts to maintain fair and ethical standards. Rule 35 establishes the right of the parties in any injury or worker’s compensation case to an independent examination of the plaintiff.
As time goes by, lawyers test the limits of these laws by trying innovative approaches until someone says that their approach violates the rule or law, either by administrative proceedings, legal action or judicial ruling. There is no procedure set forth in the Rule, other than the motions to compel the examination, so it’s time to raise this issue, and to create a simple process by which the examinations may be conducted fairly.
The intent of Rule 35 is to insure that the defense has the ability to disprove claims, while still protecting the right of the plaintiff to prove claims. The rule is intended to be fair and balanced. However, it has morphed, throughout the United States, into a conspiracy between insurers, lawyers and a select group of doctors.
These doctors do little else in terms of patient care than medical exams for insurers and lawyers. The insurers and lawyers know that the doctor will write the report a particular way, always in their favor. When the report is submitted, defense counsel files a motion limiting the possible awards the jury could vote upon. By doing so, they protect the interests of the insurer, but place the civil rights of the plaintiff or claimant in jeopardy.
Essentially these actions also enable defense counsel, the doctor and insurer to collectively produce the result of denying the right of the claimant or plaintiff to a fair civil trial. Denied the right to vote on the full options possible, the jury is limited to voting only for strict options.
The effect of limiting the jury’s award can be achieved fairly and honestly without the need for conspiracy, fraudulent medical reports and denial of anyone’s civil rights. For example, if the doctors were hired by the court, and reports submitted to the judge, each party could participate in a deposition of the doctor, and based upon the information discovered, a pre-trial motion could still be filed. The judge could then balance the evidence, the reports, the testimony in deposition and determine whether the motion to modify the jury options would be fair and just.
Let’s face it, people do exaggerate claims. But not everyone is going to do that. Defense attorneys presume everyone’s guilty of that crime, and take actions to limit the claims of honest people as well as those who are factually dishonest. Such dishonesty can come out in deposition, but if a claim for long term care needs is substantiated by fair, impartial doctors, as Rule 35 intended, then at least that person will have a chance to be taken care of in the long-term.
Why is Rule 35 so important?
As the system goes today, those denied proper long term care benefits in workers’ comp or civil cases eventually will turn to government funded health care, costing tax payers much more than if the insurer paid for it. The purpose of the insurance, for the insured is to protect them, but also, to protect the victim of any accident they’re in, and to provide for their care. The denial of this coverage as a result of the misuse of Rule 35 is in part, a breach of that expectation.