TBI Compulsory Medical Exam Process

After a person sustains a traumatic brain injury (TBI), they must go through a compulsory medical exam process if they wish to file a lawsuit against the at-fault party. This process is intended to reveal the full extent of the injury and to get a proper diagnosis.

While it can be overwhelming for a patient already suffering from a serious injury to have to go through this TBI compulsory medical exam process, it is important that they know that they have certain rights throughout it. A dedicated attorney could help you understand what this process entails and what each step could mean for your case.

Rules for Conducting the Exam

The plaintiff, or person that sustained the injury, is allowed to have their attorney present during the exam. They also have the right to have a videographer at the exam so that no important details are missed and so the court can be shown exactly what happened during the exam process. The defendant is not allowed to be present for, videotape, or transcribe the exam.

The examiner must ensure the space the exam is taken in is large enough to hold all present individuals comfortably. They are not allowed to charge the plaintiff for having their attorney and the videographer in attendance. The examiner is also forbidden from interfering with the videotaping of the exam.

Throughout a TBI compulsory medical exam process, the plaintiff should not be required to fill out any forms of documents. They are also not required to provide a medical history to the examiner, and the examiner is not allowed to state that the plaintiff provided them an incomplete or inaccurate medical history. The examiner is also not allowed to ask the plaintiff how the accident happened, who was at fault, or what happened at the scene of the accident.

The examiner is also not to discuss anything about the plaintiff’s attorney during the course of the exam. They also cannot ask if the lawyer referred the plaintiff to a specific doctor or when they hired a lawyer.

How is the Exam Recorded?

After the exam, the videotape of the exam remains the work-product of the plaintiff’s attorney. This means that the defense would not be able to view the tape during the process of discovery, unless the plaintiff chooses to waive this privilege.

In addition to the videotape, there would also be a written transcript of the exam. This transcript would also remain the work-product of the plaintiff’s attorney. Similar to the videotape, the plaintiff can also waive the right of the transcript remaining the work-product of their attorney. However, this could potentially hurt their case, so it is rarely recommended that plaintiffs do so with either the written transcript or recording

The extent of the plaintiff’s treatment and medical bills cannot be commented on by the examiner. The examiner is also not allowed to include the reasonableness of the treatment and associated costs in their report, nor are they allowed to testify about it. The examiner also cannot speculate as to what another doctor’s opinions, diagnoses, or findings may be if that doctor is not testifying in the case.

The Legal Implications of a Compulsory TBI Medical Exam

The defendant does have the right to call the examiner as an expert. However, if they choose not to, the plaintiff can then use the examiner as a witness. They may also bring it to the attention of the court that the defense could have called the examiner as their witness and chose not to do so. At any point, regardless of which side called the examiner as a witness, the defense may only refer to the exam as a “compulsory medical exam” or a “defense examination.”

After the exam, the examiner must submit a complete copy of the examiner’s report to the plaintiff’s attorney within 20 calendar days of the exam. The examiner can only testify in court about the results within this report. If the examiner submits an additional, updated, or amended report within 30 days before they are scheduled to testify, the examiner may also include this information in their testimony.

What a Lawyer Could Do to Help

The TBI compulsory medical exam process is a mandatory component of many TBI cases. However, it is important that those with such an injury understand that they have rights throughout the entire process. One of the most important rights is that they can have their traumatic brain injury attorney present, who could work to ensure that all individuals involved abide by their responsibilities and do not infringe on the patient’s rights at any time during the process.