How to Handle the Insurance Doctor Who Says You Are Faking
When an insurance company schedules a defense medical exam for a TBI claim, they are not sending a neutral physician to evaluate your condition. They are sending a hired expert whose report will be used to challenge the severity of your injury, question your credibility, and reduce or eliminate the compensation you are pursuing. Knowing what that exam involves, what tactics the examining doctor may use, and how those reports can be refuted is not paranoia. It is preparation.
Brain injury claims are particularly vulnerable to this strategy. Unlike a broken bone visible on an X-ray, the effects of a traumatic brain injury often cannot be seen on standard imaging. That gap between symptoms and visible evidence is exactly where insurance defense teams focus their efforts, and the neuropsychological IME is one of their primary tools for doing it.
The exam will feel clinical and thorough. Some of it will be straightforward. But embedded within the evaluation are standardized tests specifically designed to detect whether a patient is exaggerating or fabricating symptoms, and the results of those tests can be used in court to label a brain injury claimant a malingerer.
Reach out to an Orange County brain injury lawyer today to challenge insurance medical exams and protect the full value of your TBI claim.
Defense Medical Exam TBI Tactics
- A defense medical exam is not independent: Despite being called an Independent Medical Examination, the IME doctor is retained and paid by the insurance company. Their findings are intended to serve the defense, not provide an objective medical opinion.
- Symptom validity tests are embedded in the evaluation: Tests like the TOMM are specifically designed to assess whether a patient is performing below what their actual ability should allow, and a poor result can be used to argue the entire claim is exaggerated.
- A malingering label is a legal strategy, not a diagnosis: When a defense neuropsychologist concludes that a claimant is malingering, that conclusion is being offered to a jury or adjuster as a reason to discount everything the claimant says about their injury.
- The report can be challenged: Defense IME reports are not the final word. Treating physicians, independent neuropsychologists, and expert witnesses retained by the plaintiff’s legal team can directly refute a biased report with their own findings and methodology critiques.
- California allows exam recordings in some circumstances: Knowing your rights before the exam, including what documentation is permitted, is part of protecting your claim before the appointment even begins.
What a Defense Medical Exam Actually Is
The term Independent Medical Examination is one of the more misleading labels in personal injury litigation. The examining physician is selected by the defense, retained by the defense, and paid by the defense.
Their professional relationship is with the insurance company, not with you. Many IME doctors generate a significant portion of their income from defense referrals, which creates a financial dynamic that shapes their conclusions far more often than claimants realize.
In a TBI case, the defense will typically retain a neuropsychologist, a specialist trained in evaluating cognitive function and psychological status after brain injury. The exam may last several hours and include a clinical interview, a review of medical records, and a battery of standardized cognitive tests. The length and apparent rigor of the process can give it an air of objectivity that the underlying incentive structure does not support.
What the Exam Is Designed to Find
A defense neuropsychological IME in a TBI case is rarely designed to document the full extent of a person’s injuries. Instead, it is structured to identify reasons the defense can argue the condition is less serious than reported. Examiners typically look for inconsistencies between test performance and self-reported symptoms, compare results with prior medical records, and administer symptom-validity tests intended to detect exaggeration or fabrication.
The final report is written with litigation in mind. Terms such as sub-optimal effort, symptom magnification, or performance inconsistent with documented injury frequently appear because they give the defense language it can use to challenge the plaintiff’s credibility.
What “Trick Questions” Will the Insurance Doctor Ask?
Insurance-retained doctors often ask repetitive or simple-sounding questions to check whether your answers remain consistent throughout the exam. They may also administer cognitive assessments, including tests like the Test of Memory Malingering (TOMM), which they use to argue that a person’s effort or symptoms are exaggerated.
Symptom Validity Testing and the Malingering Defense
Symptom validity testing is a category of neuropsychological assessment specifically designed to evaluate whether a test-taker is putting forth genuine effort or performing below their actual capability. The most widely used instrument in this category is the Test of Memory Malingering, commonly called the TOMM.
The TOMM presents a series of visual recognition tasks structured so that most people with genuine cognitive impairment still perform above a certain threshold. When a test-taker scores below that threshold, the defense neuropsychologist may argue that the poor performance reflects deliberate underperformance rather than actual cognitive limitation.
Why the TOMM and Similar Tests Are Contested Evidence
Symptom validity testing was developed in clinical settings to help treating physicians identify patients who might be unconsciously or consciously underperforming, which has legitimate diagnostic uses. In adversarial litigation, the same tools are deployed differently. A defense expert who applies these tests in an environment where the claimant is aware that the exam is being conducted by an insurance-retained examiner, is not the same as a clinician administering them in a neutral treatment setting.
Research has documented that anxiety, pain, depression, and the genuine cognitive effects of traumatic brain injury can all produce test results that fall into ranges associated with poor effort on symptom validity measures.
A neuropsychologist who attributes those results to malingering without accounting for those confounding factors is making a legal argument dressed as a clinical conclusion.
Challenging that argument in court requires a thorough understanding of the test’s limitations, the conditions under which it was administered, and the examiner’s history of defense-favorable conclusions. An experienced plaintiff’s attorney and a retained neuropsychological expert can dismantle that report methodically.
Neuropsychological IME Preparation: What to Know Before You Go
Preparing for a defense medical exam is not about coaching a claimant to perform better on tests or present symptoms in a particular way. It is about making sure the person being examined understands what the process is, what their rights are, and how to behave in a way that accurately reflects their actual condition.
The most damaging outcomes in IME situations often come not from the testing itself but from casual comments made during the clinical interview or from behavior observed in the waiting room that contradicts reported symptoms.
Insurance companies have been known to conduct surveillance before and after IME appointments, and the examiner will note how the claimant enters the room, how they sit, and how they respond during informal conversation.
Your Rights During a California Defense Medical Exam
California law gives plaintiffs specific rights in connection with defense medical examinations. Under California Code of Civil Procedure Section 2032.510, an attorney is permitted to attend the examination in most circumstances, and the claimant may request that the examination be recorded. The examiner is required to provide a copy of their report upon request.
These rights exist because the IME process is inherently adversarial, and California courts have recognized that claimants need procedural protections to counterbalance the structural advantages the defense holds in designing and conducting the exam.
How Defense IME Reports Are Refuted in Court
A defense neuropsychological report does not go unanswered. A well-prepared legal team will retain an independent neuropsychologist to conduct their own evaluation, review the defense expert’s methodology, and identify the specific points where the defense conclusions are scientifically unsupported or professionally skewed.
The impeachment of a defense IME report in litigation takes several forms:
- Bias documentation: Establishing through discovery how much of the examiner’s income derives from defense referrals and how often their conclusions favor the defense over the plaintiff creates a foundation for challenging their objectivity before the jury
- Methodological critique: Identifying where the examiner deviated from standard neuropsychological testing protocols, failed to account for known confounds, or selectively emphasized findings that supported the defense conclusion
- Treating physician testimony: The opinions of the physicians who have treated the claimant over months or years carry different weight than a single exam conducted by a paid defense consultant. Treating doctors who document ongoing symptoms and functional limitations provide a counter-narrative grounded in a sustained clinical relationship
- Independent neuropsychological evaluation: A plaintiff-retained expert who administers the same tests under conditions more closely approximating a neutral clinical environment can produce findings that directly contradict the defense report and explain to a jury why the results differ
What Juries Understand About Hired Experts
California juries are permitted to weigh expert testimony critically, and courts allow attorneys to explore the financial relationship between an expert witness and the party that retained them. A neuropsychologist who has testified in hundreds of cases on behalf of insurance companies and has never once concluded that a claimant’s symptoms were genuine faces pointed questions on cross-examination, and juries notice.
The malingering defense is a powerful tool when it goes unchallenged. It loses much of its force when the jury hears how the test was developed, how it was applied, what the examiner’s track record looks like, and what a plaintiff’s own treating team has observed over the course of real medical care.
The Recording Question and Why It Matters
One of the most practical steps in preparing for a defense medical exam is addressing the recording issue before the appointment. California law creates a right to record in certain circumstances, and establishing that record can be enormously valuable if the defense report mischaracterizes what occurred during the exam.
A recording of the clinical interview, when permitted, can directly contradict a report that attributes answers or behaviors to the claimant that did not happen. It also limits the examiner’s ability to editorialize about demeanor, effort, or consistency in ways that are not supported by what actually took place.
When a defense report claims the claimant displayed inconsistent effort during interview portions of the evaluation, a recording that shows otherwise is direct evidence of a biased report.
FAQ for Defense Medical Exam TBI Tactics
Can I refuse to attend a defense medical exam?
In most civil litigation, attending a properly noticed defense medical examination is required. Refusing may result in court sanctions or adverse rulings in the case. The goal is not to avoid the exam but to prepare for it and ensure all available procedural protections are in place.
What should I not say during the clinical interview?
The most important guidance is to answer questions accurately and based on your actual experience on your actual worst days, not your best ones. Do not minimize symptoms to appear cooperative, and do not exaggerate them. Inconsistencies between what you report and what your medical records document are exactly what the defense examiner is looking for.
Can the defense use my IME results to dismiss my entire claim?
A defense neuropsychological report alleging malingering is one piece of evidence, not a case-ending finding. It can be challenged, contradicted, and contextualized by treating physicians, independent experts, and the factual record of your medical history. Its impact depends heavily on whether it goes unanswered.
How is a defense IME different from an exam my own doctor orders?
Your treating physician’s evaluations are conducted in the context of an ongoing care relationship, with the goal of understanding and addressing your condition. A defense IME is conducted in the context of adversarial litigation, with the goal of producing findings useful to the insurance company. That difference in purpose affects everything from how questions are asked to how results are interpreted.
What is the TOMM test and why does it matter in my case?
The Test of Memory Malingering is a symptom validity test used to assess whether a test-taker appears to be underperforming relative to what their cognitive capacity should allow. In TBI litigation, a low TOMM score is frequently cited by defense neuropsychologists as evidence of malingering. Whether that interpretation is supported by the full clinical picture depends on factors the defense report may not fully address.
The Label They Use Is Not the Last Word
Being called a malingerer by an insurance-retained doctor is designed to do one thing: make a jury doubt you. It is a litigation tactic dressed in clinical language, and it works when the person on the other side of the courtroom has no one willing to challenge it directly, explain its limitations, and present the full picture of what a traumatic brain injury actually does to a person’s daily functioning and claim strength.
The defense medical exam is not the end of the road. It is a step in a longer process, and what happens after that report is written matters as much as the report itself. If an insurance company has scheduled an exam or already issued a report questioning your symptoms, the time to build a response is now, not after the damage has been done in a deposition or at trial.
Contact Aghnami Law Group to talk through where your case stands and how to meet that challenge head-on.