How to Retain an Independent Medical Examiner in California
What to include, what to avoid, and how to set the examiner up to give you a defensible opinion.
The quality of an IME often reflects the quality of the retention. Examiners who receive vague assignments, incomplete records, and a disorganized records package produce opinions that are harder to rely on. Examiners who receive specific questions, complete records, and a clear understanding of the case context produce opinions that are easier to defend.
This page walks through the retention process from initial contact to records delivery, explains what should be in a retention letter, and identifies the most common mistakes attorneys and adjusters make when retaining an independent medical examiner in California.
Step 1: Choose the Right Examiner Before You Make the Call
The single most important retention decision is examiner selection, and it should happen before you pick up the phone. The examiner's specialty must match the primary claimed condition. If the case involves a lumbar disc herniation with alleged radiculopathy, you need an orthopedic spine specialist or a physical medicine and rehabilitation physician, not a general practitioner who performs IMEs occasionally.
Beyond specialty, consider: the examiner's medico-legal experience and whether they have been deposed in similar cases, whether their opinions in past cases have been consistent and defensible, whether they are available for deposition and trial testimony, and whether they can examine in a location convenient to the claimant.
If the case has a specific complex issue, such as apportionment of a cumulative trauma claim, disputed TBI, or psychiatric overlay on a physical injury, make sure the examiner has specific experience with that issue. A generically qualified examiner who has never addressed that issue before will produce a weaker opinion than one who addresses it routinely.
Step 2: The Retention Letter
The retention letter is the assignment. It tells the examiner what questions they need to answer, what the context of the examination is, and what you expect from the report. A retention letter that asks the examiner to evaluate the claimant and provide their opinions is not a retention letter. It is an abdication.
What a Good Retention Letter Includes
- Case identification: claim number, date of loss, jurisdiction, case type (workers' comp, personal injury, LTD, etc.)
- Claimed injuries: a specific description of the conditions alleged, including body parts and diagnoses claimed by the treating physician
- Mechanism of injury: how the injury allegedly occurred, with enough detail for the examiner to analyze biomechanical causation
- Specific questions: the individual questions you need answered, listed one by one. See below for examples.
- Records to be provided: an identification of what records are being sent with the letter and whether additional records are forthcoming
- Report turnaround request: your deadline for the report, with any expedite request noted
- Contact information: who the examiner should call with questions before or after the examination
Examples of Specific Retention Questions
Instead of: 'Please evaluate the claimant and provide your opinions.'
Use specific questions such as:
- Causation: Are the claimant's current symptoms and diagnoses causally related to the alleged accident of [date]? Please explain the basis for your opinion.
- Pre-existing conditions: To what extent, if any, are the claimant's current symptoms attributable to pre-existing conditions or prior injuries? Please identify those conditions and their contribution.
- Apportionment (workers' comp): What percentage of the claimant's permanent impairment is causally related to the industrial injury, and what percentage is attributable to non-industrial factors?
- MMI: Has the claimant reached maximum medical improvement? If not, when do you expect MMI, and what treatment is reasonably required to reach it?
- Future medical care: What, if any, future medical treatment is reasonably necessary and causally related to the alleged industrial injury or accident?
- Work capacity: What are the claimant's work restrictions, if any, based on your examination findings and the medical record?
- Consistency: Are the claimant's reported symptoms and functional limitations consistent with the objective findings on examination and the medical records?
Step 3: Records Assembly and Delivery
Records are the foundation of the IME opinion. An opinion formed on incomplete records is an opinion with a visible weakness that opposing counsel will exploit.
What to Include
- All treating records: from every provider who has seen the claimant for the claimed condition, including primary care, specialists, physical therapy, and mental health
- Emergency department records: from the date of the alleged injury and any subsequent emergency visits
- Imaging studies: radiology reports and, when available, the actual images. DICOM files on disc are preferable to radiology reports alone for complex imaging questions.
- Prior injury records: records from any prior injuries to the same body part, including prior IME or QME reports, prior surgical records, and prior imaging
- Pharmacy records: if opioid use or medication-related issues are relevant
- Functional capacity evaluation: if one has been performed
- Deposition transcripts: if the claimant has been deposed, the transcript is useful for comparing the examination history with sworn testimony
What Not to Do
Do not edit or cherry-pick the records you send. Defense attorneys sometimes withhold records they believe are unhelpful to the opinion they want. This strategy tends to backfire at deposition when opposing counsel asks whether the examiner reviewed the records that were not provided. A complete record review that addresses unfavorable records is a more defensible position than an opinion formed on selective evidence.
Step 4: Scheduling and Logistics
Under CCP 2032, the notice of examination must include the date, time, place, and identity and specialty of the examiner. It must be served sufficiently in advance to allow the claimant and their attorney to object if they have grounds to do so. If the claimant is represented, their attorney should receive the notice.
In practice, examination scheduling in personal injury cases is often handled by a joint scheduling call or a coordination between the IME service and plaintiff's counsel. The claimant cannot be examined at a location that requires unreasonable travel. Courts have found that requiring a claimant to travel more than 75 miles from their residence is unreasonably burdensome absent special circumstances.
For California workers' compensation: the QME scheduling process is governed by DWC regulations and is different from CCP 2032. The DWC notice requirements, record provision rules, and examination location rules all apply. Do not conflate the two processes.
Step 5: After the Examination
Check in with the examiner's office after the examination to confirm it was completed, identify any records that were flagged as missing, and confirm the expected report turnaround. If the examiner identifies record gaps after the examination, obtain and provide the missing records before the report is finalized if at all possible. An examiner who supplements their records review after the examination may need to note it in the report, but it is better than an opinion based on incomplete records.
When the report arrives, read it critically before you rely on it. Use the red flag checklist on our Red Flags in IME Reports page. A report that has problems is better identified before you file it than after opposing counsel finds them.