Under Indiana law, the liability insurer for an individual who has caused an accident and injured an individual has the right to have the injured person undergo a medical examination by a physician of their choosing. This is called an Indiana Trial Rule 35 examination.
In many cases, the liability insurer will have a reputable physician perform this physical examination merely to confirm what the treating physician has to say regarding the injured person’s diagnosis and long term prognosis. On the other hand, some insurers will select a particular physician to perform this examination who has an established tendency to say in all the patients that they examine that whatever medical condition is involved was not caused by the accident question, or that the injury has long since completely healed and that whatever remaining physical problems the individual still has were not caused by the accident. In one case, the insurance company’s doctor actually stated that my client’s spinal cord injury wasn’t caused by a semi-truck crash, but was a pre-existing condition that my client just didn’t know that they had had until they got hit by a semi-truck!
In such medical examinations, sometimes the insurance company’s doctor will also say that the medical treatment that the injured person underwent after their accident was not medically necessary. For example, in one such case that I handled involving a knee injury after a semi-truck crash, my client ‘s treating orthopaedist had recommended and performed a knee surgery to remove a loose piece of bone that was floating within the knee joint. However, the insurance company’s doctor said that he thought the surgery had been unnecessary and that the treating orthopaedist should have waited longer for the bone fragment to heal on its own, even though several months had already passed.
In this fashion, the liability insurer would argue that they shouldn’t have to pay as much because the treating physician for the injured person didn’t provide proper medical care. On the other hand, if my client hadn’t undergone the surgery that his treating orthopaedist had recommended, the insurance company would have argued that they also shouldn’t have to pay as much because my client didn’t follow his doctor’s recommendations!
Fortunately, under Indiana law, a liability insurer may not claim that medical treatment that an injured person received after an accident was unnecessary or ill advised, so long as the injured person had used reasonable care in selecting the physician that treated them. The rationale for this rule is that if an injured person requires medical care because of someone’s carelessness or negligence, it is not proper for the wrongdoer to criticize what medical care the injured person should receive since the wrongdoer created the need for this medical care in the first place.
Consequently, in my case involving an injured knee, the trial judge would not permit the insurance company’s doctor to criticize or second-guess the medical treatment that my client’s orthopaedic surgeon had recommended.
