So, Just How Short Were Dr. Katz’s Medical-Legal Exams? (updated)

Defense Medical ExamsIn part one of this series on defense medical exams I wrote about Dr. Michael J. Katz getting busted for lying on the witness stand about the one minute and 56 second orthopedic exam he did in Bermejo v Amsterdam.

In part two I followed up with Judge Duane Hart’s subsequent referral this week of Dr. Katz for civil contempt, criminal perjury and professional misconduct proceedings.

Now in part three let’s turn to investigating other exams that Dr. Katz has done, to see if his conduct in Bermejo was an aberration or systemic. I’ll try to quantify his medical exams.

But how do you quantify quality? Well, you can start by looking at its most basic element: How much time did the doctor spend actually testing/measuring/probing the person? Because if the time is too short, it’s simply impossible to do many tests.

That is a basic premise that even Dr. Katz was forced to acknowledge, crude as it is. After testifying that his first exam of Manuel Bermejo took 45 minutes (as per his notes) and his second exam of Mr. Bermejo likely took 10-20 minutes (based on his custom and practice), and plaintiff’s counsel knowing for certain that didn’t happen because he secretly videotaped the event, Dr. Katz was asked if his exam “could have taken two to three minutes.” Dr. Katz testified, “I don’t think that’s really potentially possible.”

No matter how good a doctor may be, it still takes time to run a person through the various tests needed for an orthopedic evaluation. Nobody disputes the premise.

Now all you folks reading this will agree that anecdotal evidence is a lousy way to prove a point. What if, for example, Dr. Katz’s one minute 56 second exam was an aberration, for whatever reason? How would that reflect on all the other exams he has done? Does that one incident reflect a pattern of behavior? Does it reflect on a potential perjury prosecution?

Since anecdotes are of only limited use, I looked for a database to analyze Dr. Katz’s exams. And I found one, which I’ll discuss momentarily, with dozens of his exams and with the time of each one recorded.

Before discussing my analysis of those reports, however, I need to discuss the nomenclature that gets used. Ever since I was sworn in 26 years ago, the term “Independent Medical Exams” has been used by lawyers and judges to describe the system by which insurance companies hire doctors to examine people that make claims in lawsuits, or for no-fault benefits or workers’ compensation benefits.

That nomenclature, Independent Medical Exams, has long been the subject of derision among plaintiff’s attorneys due to the vested interests the insurance companies have in limiting payments, and the “frequent flyer” doctors wanting some of that nice, steady insurance company business.

Many of us that share my side of the v. will stop others trying to discuss the “IME,” insisting that they be called for what they are: Defense Medical Exams, or DMEs. The term medical-legal exam can also be used as a neutral phrase, but the one thing you can’t call them is independent. Some in the judiciary, including Chief Judge Jonathon Lippman, agree.

I’ll support my point that Dr. Katz’s quickie DME exam of Mr. Bermejo was  not a one-off kind of event, I hope, by pointing to the only databank I know of on the subject, collected from IME Watchdog. This young company sends a “Watchdog” with plaintiffs on these exams, taking notes on what happens. It isn’t generally advisable that the trial lawyers themselves attend, for if they want to challenge the doctor regarding what happened, they might become a witness, and the trial lawyer can’t be a witness.

As a young lawyer I went on many of these myself, since I wasn’t going to be trying the case. But others that also accompany the clients are paralegals, nurses and folks with a general familiarity with how the exams are done, and the fortitude to say “no” to the doctors if they ask inappropriate questions.

An inappropriate question would be “how did the accident happen?”. That’s inappropriate because the doctors are there to report on the injuries, not to conduct an off-the-record deposition on liability that they will then memorialize in a report in their own words. The defense lawyers and doctors already have the depositions that discuss the event itself, so letting your client be cross-examined by the defense doctor, without a stenographer present, could be foolish.

So if a doctor claims he did x at the exam, and didn’t actually do x, there will be someone there to testify about it (other than the plaintiff who is simply trying to follow the doctor’s instructions and can’t be taking notes at the same time).

Since there was a sharp conflict over what happened at the first exam of Mr. Bermejo — the doctor claimed it was 45 minutes and the plaintiff’s paralegal, also in attendance, testified it was about 10 minutes, but only three or four of those minutes was part of the actual exam — plaintiff’s counsel decided to surreptitiously record the second physical exam. As noted in the initial post in this series, he’d been burned once and didn’t want it to happen again.

Now for the data I promised you, looking at other medical-legal exams:  As of July 9, 2013, IME Watchdog has attended 1,378 defense medical exams.

I’ve obtained their reports on many of the “frequent flyer” doctors, of whom Dr. Katz was one of the most frequent. The time he spent actually examining people is reflected on their reports. Dr. Katz’s custom and practice for the 36 exam reports that I viewed seem to be a very long way from the 10-20 minutes that he told Justice Hart for the second exam, and light years from the 45-minutes he claimed for his initial exam.

On the 36 IME Watchdog reports I viewed, I found Dr. Katz spent an average of 4:10 on each one:

2-minutes —  1 time
3-minutes —  5 times
4-minutes —  8 times
5-minutes –- 11 times
6-minutes  –-  2 times
7-minutes  –  3 times
8-minutes  –  1 time
9-minutes –- 2 times
10-minutes -– 1 time
12-minutes — 1 time
20-minutes – 1 time

Since Dr. Katz testified at trial that he didn’t remember the second exam that got him into trouble — though Justice Hart was incredulous as to the claim of 45-minutes on the first exam (“What universe does he live in? If I ever see a doctor do a 45-minute IME it will be the first time.”) –  Justice Hart asked him about his custom and practice. That, Dr. Katz testified, would be 10-20 minutes.

So if you remove the two outliers (a 2-minute and a 20-minute exam) in trying to find a “customary” evaluation then you get 3:45. I don’t think too many folks would dispute that either of these two numbers, 3:45 and 4:10, is a very long way from 10-20 minutes.

There are more exams reports, but these 36 were taken at random and I think after seeing that many it likely represents a pretty good sampling.

Update: After publishing this, I heard from IME Advocates, which also sends someone to accompany litigants to these medical-legal exams. They have records on 20 more DMEs from Dr. Katz. Those stats look like this, for the time actually spent on the exam itself, with an average time of 4:45, inclusive of one aberrational one:

3 minute exams – 5
4 minute exams – 7
5 minute exams – 4
6 minute exams – 2
7 minute exams – 1
13 minute exam – 1

It’s also worth noting another little nugget of testimony that Dr. Katz gave, at a trial before Brooklyn Supreme Justice Francois Rivera that I wrote about quickly at the the bottom of my first post on the subject. This was the case where, after making an inquiry, Justice Rivera said that he was “satisfied that this witness is less than forthcoming” and was concerned with Dr. Katz “materially misleading the court.”

In the case before Justice Rivera, Dr. Katz was also challenged on the length of his exam, with the plaintiff’s testimony that it took two to five minutes. Dr. Katz was asked if he had ever done them in five minutes. He said he wasn’t certain, but that “it would be out of the ordinary.”  In fact, a five minute medical-legal evaluation that may be used to turn injured people out of court and deprive them of insurance recoveries that they are entitled to, was exceptionally ordinary for Dr. Katz.

My personal opinion is that when you think about insurance fraud, this is a mighty big thing to consider. He once testified, after all to doing 750-1,000 medical-legal exams a year.

Do I have more to come? Will there be a part 4 to this series? What do you think?

Updates:

Part 4: Premature Evaluations — the Evidence on Quickie Medical-Legal Exams (7/16/13)

Part 5: Quickie Medical Exams: What Next? (7/23/13)

Part 6: To Tell the Truth: Which Doctor’s Signature is the Real One? (7/30/13)

Part 7: Doctor Testifies That Six Different Signatures Are All His (8/5/13)

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15 Responses Leave a comment

  • Attorney 2013.7.10 at 09:36 | Quote

    Ive used IME watchdog several times for this very reason. They keep they doctors in check and document everything from the time they enter the office, to exactly how long the physician actually soent examining my client. They even offer testimony and affidavits for fair prices. Would reccomend them to any attorney.

  • Carolyn Elefant 2013.7.10 at 10:47 | Quote

    This is really top notch reporting, Eric. Thank you.

  • Jill McMahon 2013.7.10 at 14:36 | Quote

    Definitely a left(lower time) skewed distribution.

  • Charise Blue 2013.7.10 at 20:25 | Quote

    How does one become privy to the length of time of multiple independent medical examinations? Why are the doctor’s earnings and “…14 years to get a raise for the judges” an issue? Why is it not mentioned that this judge has 2 prior judicial conduct losses and is known for his antics (which can be seen on-line/via video). What, in any transcript, reveals an impartial judge?

  • Eric Turkewitz 2013.7.10 at 22:23 | Quote

    How does one become privy to the length of time of multiple independent medical examinations?
    I thought that was pretty well explained in the piece.

    Why are the doctor’s earnings …an issue?
    To show a lack of objectivity. If a doctor (on either side) has too much of a vested interest in the proceedings, that might matter to some jurors.

    and “…14 years to get a raise for the judges”
    The fraud wasted the time not only of the lawyers and the witnesses, but of the court and the jurors. That is money down the toilet, and our judiciary has seen severe cutbacks in recent years.

    Why is it not mentioned that this judge has 2 prior judicial conduct losses and is known for his antics (which can be seen on-line/via video).
    If true, what issue would it be relevant to? Would that mean that witnesses are allowed to lie?

  • Richard Hershberger 2013.7.10 at 22:24 | Quote

    @Charise Blue

    “How does one become privy to the length of time of multiple independent medical examinations?”

    It is customary to actually read the post to which you are putatively responding, since otherwise you are liable to ask a question, the answer to which was discussed in some detail in the post. The unfortunate result of asking such a question is to make you appear a peculiarly incompetent hack. Take some professional pride in your hackery!

  • Jeena Belil 2013.7.11 at 12:23 | Quote

    Observation is also crucial in No-Fault Medical Exams. I routinely send someone out to observe, take notes and prepare a report. These reports can be especially helpful when disputing a No-Fault exam cut-off.

  • Hans Poppe 2013.7.11 at 23:21 | Quote

    Great piece, Eric. First, a question. How was the lawyer able to legally surreptitiously video the exam. That would be illegal in Kentucky. Second, most Kentucky judges will not permit “watchdog” to attend a DME, nor will most judges grant a plaintiff’s motion to allow the DME to be videotaped. I’ve never understood why not, but it’s been a problem long before I started practicing.
    Hans Poppe

  • Kurt Lundgren 2013.7.11 at 23:27 | Quote

    Great bit of reporting.

    Your blog has exposed something that no fault plaintiff attorneys have suspected for a long time.

  • Eric Turkewitz 2013.7.11 at 23:32 | Quote

    @Hans

    I hope that the “legality” of it will be the subject of a post next week in this series. I ain’t done yet.

  • I am a registered nurse/legal nurse consultant and have attended hundreds of DME examinations with plaintiffs. I provide the attorney with a detailed report of what transpired at the DME. The attorneys who I work for find this to be extremely valuable.

    Was it something I wrote that led you to believe you could waltz in here to freely advertise your services? I suggest you read the Notice to Spammers in the right side bar…

    By the way, I fixed your url…

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