THE FAIR INSURANCE DEFENSE PHYSICAL EXAMINATION BILL

A suggested draft

by

Health Administration Responsibility Project, Inc.

Harvey S. Frey MD, PhD, Esq., Director

(310) 394-6342†††††††††††† hsfrey@harp.org

 

A Bill to:

†††† amend Insurance Code Section10350.10

 

THE PEOPLE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares as follows:

 

††††††††††† (a) In many types of insurance, such as disability insurance, an essential part ofclaim processing is a physical examination of the claimant by the insurer's medical expert. This is commonly called an "IME", but more properly termed a "DPE".

 

††††††††††† (b) These DPEs may also be necessary to determine whether changes in claimant's physical condition require change or termination of benefits.

 

(c) Since the examiner is an employee of the insurer, whose report may result in denial of benefits to the examinee, the examination is inevitably adversarial in nature, and the examinee is entitled to at least as much protection as in a court-ordered examination in connection with discovery in a civil suit.

 

††††††††††† (d) It is therefore necessary that the scheduling and conduct of such examinations are and are perceived to be fair to examinees.

 

††††††††††† (e) As some examiners look to insurers for much of their income, it is necessary that the history of examiner's employment by defense law firms and insurers be disclosed, as currently required in Federal Rule of Civil Procedure 26(a)(2)(B).

 

SECTION 2.

 

†††† Insurance Code Section10350.10 is amended to read:

 

10350.10.A health or disability policy shall contain a provision as follows:

 

†† (a) Physical Examinations and Autopsy:The insurer at its own expense shall have the right and opportunity to examine the person of the insured under the conditions stated herein, and to make an autopsy in case of death where it is not forbidden by law or the religion of the insured.

 

†† (b) A physical examination may be scheduled in connection with initial investigation of a claim under the policy. If on-going benefits are being paid, an examination may be scheduled if there is a clear change in medical condition which may affect continuation of benefits.

Otherwise, examinations may be scheduled no more frequently than every six months.

Examinations may not be unreasonably cumulative or duplicative, or seek information obtainable from some other source that is more convenient or less burdensome.

 

†† (c) An examination may be made only by a California-licensed physician qualified in the specialty most closely related to those issues which have occasioned the examination or, in appropriate cases, a California-licensed dentist or podiatrist.

The Insurerís statement of accepted facts, issues to be resolved, and questions asked of the examiner shall be made available to the examinee or his representative prior to the examination upon request.

The curriculum vitae and credentials of any examiner or technician shall be made available to the examinee or his representative prior to the examination upon request.

 

†† (d) If an examination or test is painful, uncomfortable, dangerous, embarrassing, inconvenient, intrusive, or protracted, such as venipuncture, intubation, bowel preparation, or radiologic, pelvic, or psychiatric examination, it may not be done more often than annually without specific evidence of need, the information hoped to be obtained,and explanation of why a less offensive modality cannot be employed.

 

†† (e) Insurer must give examinee thirty days written notice of examination under this section, including time, place and phone number of the examination site, the identity, medical license numberand specialty of both the ordering and examining physicians, and the manner, conditions, scope and nature of the examination to be performed.Length of notice period may be shortened with consent of the examinee.

 

†† (f) Within ten days of receiving such notice of DPE, examinee may for good cause require insurer to reschedule to an alternate date within two weeks before or after the originally scheduled date, by providing insurer with at least five suitable dates within that four week period, and a description of the good cause.

 

†† (g) If the place of examination is fifty or more direct map miles from the examinee's residence, insurer must tender, in advance, expected expenses, including transportation, meals and lodging, for examinee and if reasonably necessary, an aide, driver, or observer.

 

†† (h) If the place of examination is fifty or more direct map miles from the examinee's residence and, within ten days of receiving notice of DPE, examinee provides insurer with a list of five physicians of the same specialty closer than the one chosen by the insurer, insurer must reschedule the examination with one of those on the list.

 

†† (i) In any examination the examinee may, at his own expense, be accompanied by an observer of his choice, who may record the examination in any way, including by audio or video tape.

 

†† (j) In any disputes arising over the propriety of an examination under this section, the insurer may not attempt to enforce its position by suspending, terminating, or threatening to suspend or terminate benefits, until it obtains a court order declaring its right to do so, pursuant to Code of Civil Procedure Section 1060. If the insurer loses the motion, it shall pay the court costs and attorney fees of the insured.

 

†† (k) If the examiner refuses to proceed with a scheduled examination in accordance with these rules, the examination shall be waived, and may not be rescheduled for six months, during which period benefits shall be paid.

 

†† (l) (1)When the examiner sends his report of the examination findings to the Insurer, he shall send a copy to the examinee or his representative at the same time.
†† (2) The examiner shall disclose in his report:
†† †† (i) the name of the defense law firm or insurance carrier by whom he was retained to perform the examination;
†† †† (ii) the fee he was paid for the examination; and
†† †† (iii) a list of all instances of retention by the defense law firm or insurance carrier within the prior ten years.

 

†† (m) All references in this section using masculine gender include the feminine.

 

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