When Should I Use an AME?

Date: March, 29, 2010

When Should I Use an AME?

As most of you are now aware, we generally advise and counsel against the utilization of an Agreed Medical Examiner (“AME”) in the vast majority of cases and under most common factual scenarios.  For one thing, AME’s tend to reflexively find some way in which to determine the existence of injury and then justify those findings or they may simply skirt the issue altogether by deferring to the so-called “Trier of Fact.”  So many times, we have reasonably legitimate expectations that the chosen AME will be fair, reasonable and responsive.  After all, didn’t we send him/her that great cover letter and what about those impressive, voluminous exhibits, including a 100 page deposition transcript?  Didn’t they even bother to read those things?  What happened?

Very commonly, we know that AME reports are generally associated with disappointing and incomplete findings, or non-responsive discussions.  More often than not, we also have to endure more reports, re-evaluations and other impairments to simply getting to the bottom line.

And there are the odds.  Applicant attorneys know by history and experience that most commonly selected, popular AME’s will mostly find some level of injury and impairment.  This explains the generally willingness of applicant attorneys to use AME’s but that use is tempered by the reality that “acceptance” of AME findings is less frequent.

WHY NO AME’S IN MOST CASES?

Here are some of my thoughts on why just saying “no” is probably the right decision in most cases:

• AME’S READILY FIND INJURY:  Always keep in mind it is just the applicant and the doctor “face-to-face” in the examination room and you are not there.  The examination becomes self-serving and even more so, when the applicant comes “prepared” by rehearsing with their lawyer.    It seems as if most AME’s tend to find some level of injury or at least to one or more contested body parts, so that a clear defense “win” is often very elusive.
• IGNORING JOINT COVER LETTER AND EXHIBITS:  AME’s may frequently ignore the joint cover letter and the accompanying exhibits and simply proceed to conduct their own inquiry, sometimes brushing aside or overlooking the very interrogatories being presented by the parties.  Other times, they may regard all cover letters as ‘much the same’ and therefore ignore selectively chosen issues, which can go unheeded.
• IT USUALLY TAKES TOO LONG: It can take several months before the applicant is actually seen by the AME.  What happens during that time when you have a TD claim or treatment issue pending?  What about the applicant who fails to attend?  What about the doctor who has to postpone?
• IS IT REALLY DONE IN ONE EXAM?:  Often, the AME will examine the applicant and then recommend a further or repeat diagnostic test, a new procedure or even a referral to some other physician before finally determining MMI and impairment.  This just starts the process of going nowhere slowly.
• AME REPORT IS INCOMPLETE?  Have you ever seen an AME report where the doctor discusses diagnosis, injury, treatment, TD and PD but ignores and therefore fails to address apportionment? You are now in the untenable position of having to either direct a joint interrogatory to the doctor or face the proposition of having to schedule a cross examination many months down the road.  It seems as if the “overlooking” of an important issue occurs more frequently than it should.  Also, some AME’s have “rules: by which they will not agree to fix something or make a correction without a formal cross examination.  This just adds to the frustration content.
• WHERE ARE ALL OF THE RECORDS?  At long last, you receive your AME report, only to discover for the first time, that the Doctor didn’t get a document or an important medical record.  Why didn’t they tell us before the examination?  Why didn’t they call and tell us? Now, we face a potentially adverse report, while having to seemingly scramble to obtain the needed but not included records, which the AME never received.  And what are the chances that the AME will get those records and then change his or her mind?  There is a maxim here.  Once the report is written it is much more difficult to get the AME to change the determinations after-the-fact.
• WILL THE OTHER SIDE NOW SETTLE? Some applicant law firms will endeavor to lull you into thinking that the usage of the AME will be the hopeful anticipated gateway for case resolution. [Ever wonder why so many applicant lawyers are overly eager to use an AME?]  Actually, with some of the firms, you might be walking into a carefully pre-designed “trap.”  While they attempt to impress you with their willingness and flexibility to go to the AME, when the report comes out, what happens if the findings are only modest-to-moderate?  Will the case now really settle?  In many instances, the short answer is “no.”  You will get the automatic “objection to the AME findings” followed by the deposition notice.     Why?  Because the applicant attorneys know something.  They know that the longer the process prolongs, the more time passes and the more opportunities the AME has to write another report, will usually tend to make the case more valuable and hence the expectations of a higher settlement, “down the road.”
• TIME FOR THE AME DEPOSITION? Question:  How many times do you not see one side or the other setting the AME cross-examination?  Most AME’s don’t want to deal with supplemental reports or responsive interrogatories in order to clarify or explain something. A few may respond to an interrogatory but this now calls into the play the willingness of applicant’s counsel to cooperate.  Why should they?  Some applicant attorneys will routinely schedule the cross-examination, knowing that with only a few well placed questions, they will more-than-likely get the AME to either recommend a new referral or another evaluation.  (“Doctor don’t you think my client should have a pain management evaluation or sleep study?)
• IS A RULE OUT OF FURTHER TREATMENT REALLY THE END? Regrettably, the answer is often “no.”  By simply going out and self-procuring or adding a “new body part,” the other side is now staring a new phase of the game.

SO WHEN DO I USE AN AME?

Here is an easy reference chart which correlates and issue to whether you should generally use an AME.  Obviously, the decision process must be accorded on a case-by-case basis, so that no rule can be applied in every case.  But the following are some suggested issue structures, which tend to correlate with whether or not to use an AME.

Always use caution when selecting an AME. One good way to test the quality of an AME is to find a recent report and look at the apportionment discussion.  Does the AME address apportionment to “causation” or to “disability.”  If the apportionment discussion is weak, the best advice is to generally “pass” on that AME.