PIP insurer’s IME is privileged in later suit
By Alan M. Singer

A defendant in an auto-accident suit may not discover the results of a prior independent medical examination by the plaintiff’s PIP insurer, Division Two of the Washington Court of Appeals has held.

In Harris v. Drake, __ Wn. App. __, 65 P.3d 350 (March 18, 2003), defendant Drake rear-ended Harris’s car. Harris sought no medical attention at the scene. A day later, however, he claimed shoulder pain and went to a hospital emergency room. Finding no broken bones, the hospital released Harris with medication for pain and inflammation. Over the next 20 months, Harris saw a family-practice physician, a chiropractor, orthopedic surgeons, and a variety of physical therapists. Harris also made a claim for personal-injury-protection (PIP) benefits with his own automobile insurer.

Pursuant to the terms of Harris’s insurance policy, the insurer demanded an independent medical examination (IME). The examination was held roughly six months after the accident. The IME doctor issued two reports, the second of which was issued nearly two years after the accident and stated that Harris’s claimed shoulder problems were "unrelated" to the accident.

Slightly more than two years after the accident, Harris sued Drake for personal injuries. During pre-trial discovery, Drake listed the IME doctor as a potential expert witness. Harris did not object. However, almost five years after the accident, and one day before trial, Harris filed a motion in limine to exclude the IME doctor’s testimony. The motion argued, among other things, that the examination was privileged work product under Heidebrink v. Moriwaki, 104 Wn.2d 392, 706 P.2d 212 (1985). While the parties argued their positions, the judge asked the attorneys to telephone the insurer to ask for its position. The attorneys told the court that the insurer would not allow the doctor to be called and "would not take a position adverse to their insured." The trial court then granted the motion and excluded the doctor’s testimony. After a judgment for plaintiff, Drake appealed.