I have two cases where the same issue has recently popped up. Each of these cases is pending in a Maryland Circuit Court in what I would call the “D.C. Suburbs.” Specifically, Montgomery County and Frederick County.
In each, the defense has selected a doctor or doctors to examine my clients. This is normal in a personal injury case. Plaintiff puts his or her physical condition at issue by making a claim for damages for a bodily injury. I don’t have a problem with the defense wanting an examination of my clients, in and of itself. I agree that under Md. Rule 2-423, a court would likely find “good cause” to order an examination if I did not consent.
My problem is that in each of the cases, the doctors the defense has selected only have offices in Washington, D.C., which is outside the subpoena power of the courts where my cases are pending. So if (when) I need to serve a subpoena for deposition and document production, I would need to do all the extra paperwork needed to obtain and serve a foreign subpoena. Getting financial records from these guys (almost invariably guys) is a battlefield as it is. The last thing we want to have to manage is going through another jurisdiction.
There there isn’t exactly a shortage of Maryland doctors willing to perform defense medical examinations. If asked, I could probably give the defense lawyers a list of at least a half-dozen candidates in each specialty. You can bet that when they ask a plaintiff to cross state lines, that the expert is someone who is making hundreds of thousands of dollars a year from the insurance companies doing IMEs.
Usually, I tell the defense attorneys in these situations that I will only consent to the examination if they pick a Maryland doctor to perform it, or if the physician will voluntarily accept service of a Maryland subpoena and authorize the defense attorney to accept service. Sometimes we reach an agreement, and sometimes the defense files a motion to compel the examination. Maryland judges are largely going to have the plaintiffs back on this issue. It is one thing to ask a Rockville plaintiff to travel to D.C. It is quite another to use that location as a sword to prevent getting the financial records that the Maryland Court of Appeals has said we are entitled to see.
What I would really like to see is an amendment to Md. Rule 2-423 requiring that any examination performed under the rule take place in the state of Maryland, by a physician licensed in Maryland, unless the court orders it to take place elsewhere after a showing of good cause. Other court rules address the location of events related to the litigation, so why should physical examinations be any different? While I also realize you lose certain rights when you file a lawsuit, it just does not feel right demanding that an injured victim cross state lines. Why not do the IME at the victim’s house or office?