Sham Medical Exams for Litigation (A Round-Up)

Last week the New York Times ran a huge piece on phony medical exams that were used to deny injured people benefits in Workers Compensation exams. (Exams of Injured Workers Fuel Mutual Mistrust) I didn’t blog it then as I was starting a trial in New York, a trial made more difficult due to the Astor trial starting the same day and sucking all the jurors out of the system since it was in the same courthouse.

But this was the lede from the Times:

Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker’s back. “Mild spasm bilaterally,” he said softly. He pressed his fingers gingerly against the side of the man’s neck. “The left cervical is tender,” he said, “even to light palpation.”

Dr. Edward Toriello feels that workers’ doctors are often biased. “I think it’s human nature to help your patient. I think a lot of doctors say: ‘I don’t need the aggravation. It doesn’t hurt to keep him out of work.’”

The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers’ compensation benefits because he no longer felt he could do his job.

Dr. Samuels, an independent medical examiner in the state workers’ compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.

Yet the report Dr. Samuels later submitted to the New York State Workers’ Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

The Times also has a related article from March 31st: For Injured Workers, a Costly Legal Swamp.

The problem of so-called “Independent” medical exams, or IMEs, that are dismissive of the injuries suffered by their fellow human are, of course, not limited to Workers’ Comp cases. They show up routinely in personal injury cases, especially auto cases where insurance companies and their attorney seek a report claiming that there is no “serious injury” (See: New York’s No-Fault Law Problem With “Serious Injuries”) and that therefore the case should be dismissed. The plaintiff’s bar calls these “defense medical exams,” since they are anything but independent.

These sham medical exams have also been the subject of litigation, including RICO suits. My posts on that subject has generated a tremendous amount of page views and commentary, some of which is from those involved in the exams and/or litigation:

• State Farm Hit With Civil RICO Claim Over Sham Medical Exams (2/4/8)
• Allstate Slammed With RICO Charge Over Sham Medical Exams (3/2/08)
• A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge
  (3/3/08)
• State Farm Hit With New RICO Suit, Brought as Class Action by Patient for Sham Exams
  (4/8/08)

The article and subject matter has also been the subject of commentary in the blogosphere:

• Doctors Paid for False Reports in Injury Cases? (Hochfelder)
• IME Doctors Caught on Tape (Miller)
• The New York Times Tells The Story Behind “Independent” Medical Exams (Perlumtter & Schuelke)
• Biased insurance medical exams reexamined (Shigley)

Related posts:

1. State Farm Hit With Civil RICO Claim Over Sham Medical Exams
2. Allstate Slammed With RICO Charge Over Sham Medical Exams
3. State Farm Hit With New RICO Suit, Brought as Class Action by Patient for Sham Exams
4. New York Bar Exams (Legendary Screw-Ups)
5. The Myth of Frivolous Litigation

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