In a car accident lawsuit in New York, the defense has the right to have you examined by a physician of its choosing under CPLR 3121. This examination is called an Independent Medical Examination, or IME. Despite the name, the examination is neither independent nor neutral. The physician is selected and paid by the insurance carrier. The purpose of the examination is to generate a medical opinion that supports the carrier’s position — typically that your injuries are less severe than your treating physician found, that your condition is caused by pre-existing degeneration rather than the accident, or that you have reached maximum medical improvement and no further treatment is needed.
Many IME physicians derive a substantial portion of their practice from defense insurance work. Their reports read like defense arguments. Their conclusions favor the defense in the overwhelming majority of cases they review. This is not a secret. Defense firms know the physicians who produce favorable reports and refer cases to them accordingly. Understanding this reality — and preparing for it — is essential to protecting your case from the predictable IME conclusions.
When the carrier requests an IME
The carrier typically requests an IME after the lawsuit is filed, during the discovery phase. The request is made through a formal notice under CPLR 3121. The examination must be scheduled at a reasonable time and location, typically within a reasonable geographic distance from the plaintiff’s residence. The carrier may also request a no-fault IME earlier in the process to evaluate whether continued PIP benefits are warranted — no-fault IMEs operate under a separate procedural framework and can result in the termination of ongoing PIP benefits if the examining physician finds that further treatment is not causally related to the accident.
You are required to attend the IME if it is properly noticed. Failure to attend can result in suspension of your no-fault benefits in the no-fault context, or sanctions in the litigation context up to and including dismissal of your lawsuit. If you cannot attend on the scheduled date due to a genuine conflict, notify the carrier or defense counsel and request rescheduling. Do not simply fail to appear.
What happens during the examination
The IME physician reviews your medical records in advance of the examination. Your attorney may have the opportunity to object to specific records or to provide additional records. The examination itself begins with a history — the physician asks you questions about the accident, your symptoms, your treatment, your daily activities, and your current limitations. The history is written in the report and may be used to argue that your answers at the IME are inconsistent with your medical records or your deposition testimony.
The physical examination follows. The IME physician tests your range of motion using a goniometer or visual estimation, performs neurological testing (reflexes, sensation, motor strength), and assesses your functional limitations. The examination is typically brief — often 15 to 30 minutes. The physician then prepares a report that becomes part of the defense file. The report addresses the diagnosis, the causal connection to the accident, the permanency of the injury, and the need for further treatment.
In New York, you have the right to have a representative present at the IME in many circumstances. Some firms send paralegals or nurses to document the examination. The representative does not participate in the examination but takes notes on the duration, the tests performed, the conversation, and the physician’s demeanor. If the IME physician’s report later contradicts what actually happened at the examination, the representative’s notes provide a factual basis to challenge the report.
How to prepare for the IME
Be honest. Describe your symptoms accurately. Do not exaggerate and do not minimize. If a movement hurts, say so. If it does not hurt, say that too. The IME physician may perform Waddell testing or other measures designed to detect suboptimal effort. If the results suggest you were not giving full effort, the report will say so, and the carrier will use it to argue that your subjective complaints are unreliable.
Give maximum effort on every physical test. Do not hold back for fear of making the injury worse — the IME physician is trained to detect effort modulation, and anything less than maximum effort is documented as inconsistent presentation. If a test is painful, complete it to the point where continuing would cause significant additional injury and then stop and explain why you stopped. The physician will document your explanation.
Answer the questions that are asked. Do not volunteer additional information. Do not discuss the legal aspects of your case, your attorney, or your opinion about the insurance process. The IME is a medical examination. Keep it medical. Answers that stray into case strategy, complaints about the insurance company, or descriptions of your legal claim become material the defense uses at deposition or trial to attack your credibility.
Your treating physician’s records are the counterweight
The IME report is one physician’s opinion based on a single brief examination. Your treating physician’s records reflect months of treatment with objective findings documented at every visit. When the treating physician’s records contain range of motion measurements in degrees, neurological findings, imaging correlations, functional assessments, and causation opinions tying the injury to the accident, they carry substantial weight against the IME report. A treating physician who has examined the patient 15 times over six months and documented consistent objective findings is a more credible witness than an IME physician who spent 20 minutes with the patient on one occasion.
When the treating physician’s records are thin — brief notes, subjective complaints only, no objective measurements, no causation opinion — the IME report fills the vacuum. The jury or judge hears only one medical voice with substance, and that voice favors the defense. This is why the treating physician’s documentation must be thorough from the first visit and at every visit thereafter. The documentation is the evidence. The IME does not change what is in the treating physician’s records — it can only try to discredit it.
How the carrier uses the IME report
The carrier uses the IME report in two primary ways. First, it may use the report to support a motion for summary judgment on the serious injury threshold under Section 5102(d), arguing that the IME physician’s findings do not support a qualifying injury under any of the statutory categories. This is the most common use of the IME report in New York car accident litigation. Second, the carrier uses the report to reduce the damages valuation during settlement negotiations, arguing that the IME physician found less severe injuries than the treating physician documented, and that the case value should reflect the less severe findings.
In both contexts, the strength of your treating physician’s documentation determines whether the IME report succeeds or fails. A case with thorough treating physician records defeats the threshold motion and responds to the settlement argument with contrary medical evidence. A case with thin records loses the threshold motion and sees the settlement offer discounted based on the IME conclusions.
After the IME: reviewing the report
After the IME examination, the defense physician prepares a report describing the findings and conclusions. The report is sent to defense counsel and then produced to the plaintiff’s attorney during discovery. Your attorney reviews the report carefully. Does the report accurately describe what happened at the examination? Does it address all of the injuries claimed? Are the range of motion measurements consistent with what was actually performed? Are there factual errors, such as incorrect statements about your treatment history or the mechanism of injury?
IME reports often contain errors. The physician may have misunderstood something during the examination. The physician may have overlooked imaging findings or prior records. The physician may have applied the wrong legal standard in assessing threshold categories. These errors are addressed in the plaintiff’s response to the threshold motion or at trial through cross-examination of the IME physician. An attorney who carefully reviews the IME report identifies the errors and prepares to respond to them. An attorney who accepts the report at face value misses opportunities to defend the case effectively.
Treating physician response to the IME
After the IME report is produced, the treating physician may be asked to respond to it. A well-prepared treating physician affirmation addresses the specific conclusions in the IME report, explains why the treating physician’s clinical findings differ, and supports the causation and permanency opinions with the clinical record. This affirmation becomes the key evidence opposing the threshold motion. A treating physician who documents thoroughly throughout treatment — objective findings at every visit, imaging correlations, functional assessments — is positioned to provide an affirmation that rebuts the IME point by point.
A treating physician who used brief EMR templates and recorded only subjective complaints has limited ability to rebut the IME at this stage. The time to build the evidence that defeats an IME is during the treatment phase, not after the report is issued. This is why monitoring the medical record throughout the case is so important. The record that seems adequate for treatment purposes may not be adequate to oppose a carefully prepared defense motion.
How Schwartzapfel Holbrook prepares clients for IMEs
At Schwartzapfel Holbrook, we prepare every client for the IME. That preparation includes reviewing what to expect, advising on how to answer questions, and ensuring the treating physician’s records are thorough and current before the examination takes place. We send a representative to document the IME in appropriate cases. After the IME, we review the report for inaccuracies and identify areas where the treating physician’s findings contradict the IME conclusions. If the IME report is used to support a threshold motion, we respond with the medical evidence that defeats it. The IME is a predictable tactical move by the defense. We treat it as such and prepare accordingly.
Schwartzapfel Holbrook / Fighting For You