Why independent medical exams are a crock. - Mark P. Loftus

Eric Turkewitz writes a great blog on trial work entitled New York Injury Law Blog. He had a great post yesterday detailing the ugly underside of the “independent medical exam”[“IME”] that insurance lawyers often arrange in order to dispute the severity of the injuries claimed by plaintiffs in personal injury cases. Illinois law allows for similar exams under Supreme Court Rule 215. The theory is that a respectable physician, hired by the insurance company, will conduct a thorough examination of the plaintiff and then write a completely objective, unbiased report as to his or her findings. But that rarely happens. More often than not, the designated doctor is anything but independent. He or she has been doing examinations for the same firms/carrier for years – and making a damn good buck doing it. The examination is often cursory at best and the subsequent report nearly always minimizes, or disputes the findings of the injured party’s treating doctors – who have been seeing the patient for months and or years.

As Turkewitz details in his post, Queens Supreme Court judge Duane Hart was presiding over a trial where the plaintiff has suffered a severe fracture to his ankle after falling from a scaffold. Ultimately the injury required a fusion surgery at the joint. A jury award of $1 million dollars, or more, was a possibility. So the defense, in an effort to keep those numbers down, hired orthopedic surgeon Michael Katz M.D. to perform the dreaded IME. Katz is a frequent IME flier and makes over $1,000,000 annually doing IME exams. Katz did his exam. Plaintiff’s counsel was present during the exam. And, unbeknownst to Katz, plaintiff’s counsel secretly recorded the entire exam. [Dr. Katz and plaintiff’s counsel had some previous unpleasantness between them – and the recording was made to rebut any accusations that might be made later]. The tape was never provided to the defense as New York rules do not require recording of non-parties[Katz] to be produced. Katz was later called as a witness at trial to testify as to his findings.

Then Katz came in and testified to a 10-20 minute exam of the plaintiff, during which he made a number of findings. The tape was then made known to the Court and upon review, showed an exam of less than 2 minutes. And in light of the brief exam, Judge Hart was concerned that Katz could not have made the findings to which he had testified. Judge Hart then declared a mistrial after nearly 3 weeks of trial. Another hearing was then scheduled for July 1, 2013 to decide which party and or lawyer should bear the costs for causing the mistrial. At that hearing, Judge Hart noted that he had offered Dr. Katz an option to quietly bow out of the IME business – but Katz had refused. Hart went on to note that the tape clearly revealed that Katz had spent considerable time discussing tests he had never actually performed. And, Judge Hart noted that everyone – even defense counsel, acknowledged the tape repudiated Katz’ testimony.

Judge Hart has ordered the full transcript of Katz’ trial testimony be written. Turkewitz’ article noted that Judge Hart intended to forward the matter to the Administrative Law Judge for a civil contempt hearing, and, that the matter be sent to the District Attorney with a recommendation that a prosecution for perjury be explored.

The post, which is a great read, also has a link to a transcript of the proceedings. Great work both by New York Trial counsel[not disclosed in the post] and Turkewitz for reporting the developments.