Medical Issues in Divorce Litigation

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Often in divorce litigation, one party claims that they have a disabling medical condition that may entitle them to additional spousal support if they cannot work full-time at their own occupation/profession. In Arizona, according to my attorney clients, opposing counsel has the right to request one independent medical examination (“IME”) to either confirm or refute the existence of a disabling condition which may impact spousal support.

In many cases, a particular medical condition(s) may be evaluated by a number of different physician specialists. In selecting which specialist to perform an IME there are a number of factors to consider before you have your “one shot” at the process. Having a medical consultant involved in the case to assist in the strategic process of selecting the appropriate IME physician is crucial.

A medical consultant on the case will thoroughly review all of the person’s medical records and will usually have formed an opinion based on objective medical evidence, as to whether or not a disabling medical condition exists. Let’s take the example of low back pain, a very common complaint that divorce litigants use to attempt to get additional spousal support on the basis of a “disability.” In determining which type of specialist to perform the IME, the medical consultant will advise the attorney on matters of professional bias. In the low back pain scenario, one might select one of a number of medical specialists, such as an orthopedic surgeon, a spine neurosurgeon, a neurologist, a rheumatologist, or a physiatrist (physical medicine-rehabilitation physician). If the litigant does not have a surgically treatable condition such as spinal stenosis or a significantly herniated disc, and the IME is performed by an orthopedic or spine neurosurgeon, in all likelihood the report will state there is no significant disability. Conversely, if the IME provider is a physiatrist, neurologist or rheumatologist, additional diagnostic studies may be requested, and even if there is no “surgical disease,” the report may state that there is a partially or fully disabling condition. Having a medical consultant involved in your case will optimize the chances of achieving the litigation outcome that you and your client desire.

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