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Preparing for a Defense Medical Exam (DME) in a CP Case

Excerpt: The defense medical exam (DME) is one of the most anxiety-inducing moments for parents in a cerebral palsy lawsuit. This guide explains what to expect and how to prepare.

What Is a Defense Medical Exam?

A Defense Medical Examination (DME) — also called an Independent Medical Examination (IME) — is a medical evaluation of your child conducted by a physician chosen and paid by the defense (the hospital or doctor being sued). In New York, under CPLR 3121, a defendant in a personal injury or medical malpractice case has the right to require the plaintiff to undergo a physical examination by a physician of the defendant's choice.

The DME is not "independent" in any meaningful sense. The examining physician is hired and paid by the defense, and their role is to evaluate your child's condition from the defense's perspective. The defense hopes the DME will support their arguments — that the injury was not caused by negligence, was not as severe as claimed, or was caused by something other than the alleged malpractice.

For parents of a child with cerebral palsy, the DME can feel invasive and stressful. Understanding the process and knowing how to prepare can protect your child's rights and your case.

Why the Defense Wants a DME

The defense requests a DME to:

1. Assess the child's current condition — To document the severity and nature of the cerebral palsy
2. Evaluate causation — To argue that the CP was caused by something other than the alleged negligence (e.g., genetics, prenatal events, prematurity)
3. Assess future needs — To challenge the life care plan and argue that future care needs are less than claimed
4. Prepare testimony — The examining physician may serve as an expert witness at trial
5. Look for inconsistencies — To compare what they observe with what has been claimed in the lawsuit

What to Expect at the DME

The Setting

The DME is typically conducted at the examining physician's office. The examination may last 30 minutes to 2 hours, depending on the complexity of the case.

Who Is Present

• Your child — The person being examined
• The examining physician — Chosen and paid by the defense
• You (the parent) — You have the right to be present during the examination, especially for a minor child
• A court reporter (sometimes) — Your attorney may arrange for a court reporter to create a verbatim record of the examination, which can be valuable if the physician's later testimony differs from what was said

What the Physician Will Do

For a cerebral palsy DME, the physician (typically a pediatric neurologist or physiatrist) will:

1. Review medical records — Before the exam, the physician will have reviewed your child's medical records
2. Take a history — The physician will ask about the child's birth, medical history, current condition, daily functioning, and care needs
3. Perform a physical examination — Assessing muscle tone, reflexes, motor function, developmental milestones, and any associated conditions (seizures, vision, hearing)
4. Observe the child — The physician will observe the child's movements, posture, and interactions
5. Ask about daily life — How the child eats, sleeps, communicates, attends school, and participates in activities

How to Prepare

Before the DME

1. Meet with your attorney — Your attorney will explain the process, answer questions, and prepare you for what to expect.

2. Review the medical records — Be familiar with what is in your child's medical records. Do not volunteer information that is not asked for, but be truthful about what is asked.

3. Prepare your child — Depending on your child's age and cognitive abilities, explain what will happen in age-appropriate terms. Bring comfort items (toys, snacks, a tablet).

4. Keep a symptom diary — Before the DME, write down your child's daily challenges, care needs, and limitations. This will help you answer questions accurately and comprehensively.

5. Do not exaggerate — Be truthful and accurate. Exaggerating or minimizing your child's condition can damage your credibility.

6. Do not discuss the lawsuit — Do not discuss the legal case, attorneys, settlement discussions, or legal strategy with the examining physician.

During the DME

1. Be present — You have the right to be in the room during your child's examination. Exercise this right.

2. Answer questions briefly and truthfully — Answer only what is asked. Do not volunteer additional information or explain more than necessary.

3. Correct misunderstandings — If the physician makes an incorrect assumption, politely correct it.

4. Take notes — Write down what happens during the exam, what questions are asked, and anything the physician says that seems unusual or biased.

5. Do not argue — Even if the physician seems biased or asks leading questions, remain calm and courteous. Your behavior is being observed.

6. Note the time — Record how long the examination lasts. If the physician claims to have conducted a thorough examination but it only lasted 15 minutes, this can be used to challenge the examination's validity.

After the DME

1. Write a summary — Immediately after the DME, while your memory is fresh, write a detailed summary of what happened, what was asked, what was examined, and how long it lasted.

2. Share with your attorney — Provide your notes to your attorney promptly.

3. Do not contact the physician — Do not call or email the examining physician after the exam. All communication should go through your attorney.

Common Defense Tactics at DMEs

Leading Questions

The physician may ask leading questions designed to elicit responses favorable to the defense. For example: "Your child seems to be doing well in school, right?" — Answer truthfully, but do not accept the premise if it is inaccurate.

Minimizing the Injury

The physician may attempt to minimize the severity of your child's condition. For example, they may note that the child can walk with a walker and frame this as "mild" CP, when the reality is that the child requires extensive support.

Suggesting Alternative Causes

The physician may ask questions designed to suggest that the CP was caused by something other than the alleged malpractice — such as genetics, prematurity, or an infection.

Observing Behavior

The physician will observe your child's behavior throughout the visit, including how they interact with you and whether they seem more capable than what has been described. Be natural and do not coach your child to behave differently than normal.

Frequently Asked Questions

Do I have to attend the DME?

Yes. If your attorney has agreed to the DME (or if the court has ordered it), you must attend. Refusing to attend can result in sanctions or dismissal of your case.

Can I be in the room during my child's DME?

Yes. You have the right to be present during your child's examination, especially since your child is a minor. Exercise this right.

Can my attorney attend the DME?

Your attorney typically does not attend the DME in person, but you can have a court reporter present to create a verbatim record. Your attorney will prepare you thoroughly beforehand.

What if the examining physician is rude or biased?

Remain calm and courteous. Take detailed notes about any unprofessional behavior. Your attorney can use this information to challenge the physician's credibility.

How should I answer questions at the DME?

Answer truthfully, briefly, and only what is asked. Do not volunteer information, do not exaggerate, and do not minimize. If you don't know the answer to a question, say "I don't know."

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If you or a loved one has been affected by cerebral palsy from a birth injury in New York, contact MDLaw Firm at 347-524-5777 for a free consultation.

This article is for informational purposes only and does not constitute legal advice. Prior results do not guarantee a similar outcome. No attorney-client relationship is created by reading this article or contacting MDLaw Firm.