Toward making 'IMEs' Independent

The complaint that ‘independent medical examinations’ (IMEs) initiated by insurance companies are unfair or biased appears to be universal. Many claimants and their medical providers believe, perhaps with good reason, that insurance adjustors send claimants to examiners who can be counted on to issue reports that favour the insurer’s position. Doctors who routinely side with insurers can expect appreciable income flow from the potentially unlimited supply of referrals. In Colorado, several auto insurance companies consistently relied on a handful of notoriously biased doctors to perform IMEs, to the extent that the results were so predictable that the report did not have to be read to know that benefits would be terminated. For example, one well-known psychiatrist who happened to sit on the board of directors of a major insurance company once evaluated over 200 consecutive patients diagnosed with organic brain injuries from motor vehicle accidents (MVAs) without ever finding a case of emotional or intellectual problem that he could attribute to the MVA. The bulk of the patients were labelled ‘malingerers’ or described as having ‘pre-existing psychiatric disorders’. This included one young man who had crashed his motorcycle into the side of a truck and lay in coma for two weeks. His subsequent problems of impulse control and impaired reasoning were attributed by the IME doctor to the patient having grown up with an alcoholic father! Fed up with such abuse, a grassroots effort to reform the way that IMEs were used in Colorado sprang up, spearheaded by a state senate legislative aide who had been ‘revictimized’ by an IME following her own MVA. Declared to be no longer in need of treatment despite being unable to perform her routine legislative duties, she was able to garner the support of her therapists and her legislative colleagues in the State Senate to draft a bill that would prohibit any insurance company from relying on any IME to terminate MVArelated benefits. Before the bill’s introduction into the State Legislature, the providers involved in her care, including physical therapy, chiropractic medicine, dentistry, neuropsychology and speech pathology, mobilized their colleagues by encouraging them to write or call their own state representatives to alert them of the problem, and asking the colleagues to alert other professionals and victims of IMEs of the effort and the process. The initial attempts by the insurance industry to kill the bill were blocked because by that time legislators from all over the state had been barraged by doctors and patients who wrote or called expressing their support for IME reform, and the bill was allowed to proceed to the committee stage for public hearings. The organizing therapists then began enlisting MVA patients to show up for the hearings to tell their stories of how they had been treated by their insurers. The response was overwhelming to the point that one critical hearing had to be moved out of the normally used hearing room into an assembly hall to accommodate the overflow crowd. Faced with this massive show of opposition, the insurance industry dropped its outright resistance and agreed to work on compromise legislation that they proposed would “dispel the misperception that the IME process was biased”. The resulting legislation, which was passed and signed into law in 1996, made several important changes to Colorado’s no-fault law. First, a new program was created under the direction of the State Insurance Commissioner to provide the exclusive mechanism for resolving disputes over the reasonableness, necessity and relatedness of treatment following MVAs. The program (the Personal Injury Protection [PIP] Examination Program) makes available a group of licensed health care providers, experienced in the treatment of MVA issues and actively engaged in clinical practice, who have not earned more than half their income or spent more than half their professional time performing IMEs, to examine patients when a dispute with the insurance company arises. When a dispute arises and an examination is requested, a list of five qualified practitioners in the same specialty as the treating doctor whose opinion or bills are disputed is prepared and within five days of the request sent to the party disputing the claim (usually the insurance company, but maybe the patient in the case that there was a dispute over an earlier IME). If neither side can agree on one person from the list to conduct the examination, the insurer and the patient each strike two