January 28th, 2016

Doctor Tries To Take Down Lawyer’s Blog Post By Filing Grievance – updated x2

Michigan attorney Steven Gursten

Michigan attorney Steven Gursten

Wow. Defense-medical exams and a defamation claim against a law blogger! Two of my favorite topics wrapped up in one ugly Michigan incident now ongoing.

Now you folks know I have a thing or two to say about doctors that do a lot of defense medical-legal exams. And you know I have a thing or two to say about BS claims of defamation, having been on the receiving end of a couple of moronic lawsuits.

Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.

Gursten was so ticked off at Dr. Griffin, that he wrote about her. Like me, he thinks that many of the doctors that make these exams a staple of their practices are doing hatchet jobs on the injured plaintiffs in order to benefit the insurance companies.

(For a comic view of how one lawyer sees it, you can view this cartoon.)

The short version of today’s story is that Gursten’s client was hit by two trucks, and he asserts that the client suffered a traumatic brain injury, broken back, and other significant injuries. Dr. Griffen then did the defense medical exam (DME) — sometimes improperly called an independent medical exam (IME) — and issued a report.

Gursten then presented evidence and asked readers to draw their own conclusions as to whether Dr. Griffen committed perjury. In fact, by the title of his posting, you can see that this invitation to readers was his explicit intention:

Heading: IME abuse? Read the transcript of Dr. Rosalind Griffin in a terrible truck accident case and decide for yourself

Subheading: How many thousands of innocent and seriously hurt people lose everything because of so-called “independent medical exams,” such as this example by Michigan psychiatrist Dr. Rosalind Griffin?

Dr. Rosalind Griffen, as seen during her video testimony in this matter.

Dr. Rosalind Griffen

He presented evidence that Dr. Griffen — who he said is “a rather notorious IME doctor here in Michigan” — was less than candid in her assessment.

Gursten asserts that this evidence disproves the doctor’s claim that the client said during the exam that his condition was improving, that the client had minor medical conditions, and despite “a closed-head injury, traumatic brain injury, abnormal memory and concentration, PTSD and a badly fractured and collapsed T12 vertebral body, as well as fractures to his mouth, shoulder and knee” that the client’s chronic pain actually came from a 30-year-old whiplash that had been asymptomatic.

This presentation of evidence, and request that readers make their own determination as to whether Dr. Griffen committed perjury, occurred Nov. 13, 2014.

Thirteen months later, Dr. Griffen filed a grievance, claiming defamation, and asking that the Committee require the lawyer to:

  • “delete his outrageous posting”; and
  • “[R]emove the link to Google results for my name.” [I didn’t make that up, I swear. — ET]
  • Punish and sanction him for putting her testimony and her conduct under oath on the internet for people to read.

Gursten wasn’t cowed by the complaint and proceeded to put it up online this week in a new posting with this heading and subheading:

Heading:  Sticks and stones and…attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?

Subheading:  IME doctor files grievance to suppress blog post and punish attorney for disclosing her conduct

Over the course of a very extensive follow-up posting this week, he provided many examples of differences between what the doctor claimed, and what he said actually happened. This is a sample, with much more at the original posting:

What Dr. Griffin claims James Fairley said. What James Fairley actually said.
“[A]ccording to his own statement he feels less depressed and is making progress.” (IME Report, Page 8)  “Q. What’s a good day for you? A. I don’t know. I haven’t had one lately. … I just have a profound sadness … Q. Do you think you’re depressed, sir? A. I do. … Q. Have you been tearful? A. Oh, yeah. I cry at the drop of a hat sometimes.”  (Fairley Dep., Page 58 (lines 1-2, 7), Page 61 (lines 13-14), Page 62 (lines 4-5))

In the text of the grievance, Dr. Griffen complains thusly about the original blog post:

Notably, it is the first item returned when someone uses the Google search engine on my name, thereby ensuring that it will be noted and read by individuals researching me or selecting a psychiatrist who will best meet the needs of the patient.

The problem, of course, is that Gursten merely provided the documents and video testimony, and pointed to various sections of them, while offering his opinions. He did what lawyers do: He presented evidence and asked the jury (his readers) to decide.

The doctor’s complaints that calling her “notorious,” or her exam a “hatchet job,” would be merely opinion. And opinion is not actionable under the First Amendment. It isn’t even a close call.

She also tries to make the complaint, unconvincingly I might add, that writing about her exam and testimony violates Rule 8.4 of Michigan’s rules of professional conduct which state that it is attorney misconduct to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

Since there is nothing dishonest or fraudulent about providing evidence and asking a series of questions about where that evidence leads, I don’t see how she can possibly prevail. Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice. I do it here all the time.

Why would Dr. Griffen — who happens to be a member of the very grievance committee to which she is complaining — file this?

Leaving aside the obvious possibility that she may have friends on the committee, the other possibility is that she tried mightily to find an attorney to bring a lawsuit, and that everyone told her “Are you shittin’ me?” though they may have been a tad more blunt. Then a year went by, the statute of limitations expired in Michigan, and she made this complaint feeling she had to do something.

And so she did. And now people out of state, who had never heard of her, are writing about her. Well played, doctor, well played.

(Pro tip: If you need to file a dopey defamation case, you might try Jonathan Sullivan at Ruskin Moscou Faltischek in New York. He’s the guy that brought Dr. Michael Katz’s pointless and doltish suit against me regarding an “IME” and testimony that Katz did. Who knows, maybe he wants to do it again?)

Addendum: More at Public Citizen, a small excerpt below. At the link are also case citations,  and a thorough exposition on the chilling effect that permitting such grievances has on free speech.

Griffin’s complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity).  It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations.  Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.

In discussing the Michigan’s Grievance Commission, in highly critical terms for allowing this to go forward and requiring a response from Gursten, Public Citizen’s Paul Alan Levy writes:

The Commission staff might well be hoping to exact an apology as Gursten’s price for peace, but at least so far, Gursten is not only not caving in to Griffin’s pressure, but he has called Griffin’s bluff and raised the ante.

Addendum #2: Scott Greenfield weighs in on Rosalind Griffin using a disciplinary complaint because an actual defamation case would fail, and the completely expected reaction (from anyone in the least bit savvy about the internets):

But if the lawyer disciplinary process seems like easy pickin’s to silence blawgers, the flip side is that we’re not particularly inclined to run scared, and we have this tendency not to take kindly to being extorted through the use of the grievance procedure to shut us up.

Has Dr. Rosalind Griffin ever heard of Barbra Streisand?  If she thought she had something to twist her face into a frown before, she’s really gonna hate what happens when her effort to use the disciplinary procedure to silence Gursten not only fails, but backfires big time.

 

August 4th, 2015

Douglas Kennedy’s Lawyers Get Disqualified in Nurse Assault Suit (Updated)

Douglas Kennedy-Wesrtchester Hospital

Screen capture from video of the Douglas Kennedy incident at Westchester Hospital

In a ruling late last week, the attorneys for Douglas Kennedy, son of Robert F. Kennedy, were disqualified from defending him in a suit arising out of his alleged assault of two nurses.

The January 7, 2012, incident, widely covered in the media, arose when Kennedy attempted to take his three-day old son outside of Northern Westchester Hospital for fresh air. He was stopped by nurses who said he was not permitted to do so without a bassinet, and a tussle ensued which was partially caught on video.

Kennedy was acquitted of misdemeanor charges of child endangerment and harassment in the second degree, but a civil suit followed for personal injuries.

The remarkable disqualification came about due to a subject I have extensively covered on this blog, the way that defense medical exams are done and reported. (Many judges use the misnomer IME though the exams are not actually independent. Chief Judge Lippman agrees with me on this. These exams are commissioned by counsel, not the court.)

In this case, three doctors examined each of the nurse-plaintiffs, and four of the six reports said that the injuries were causally connected to Kennedy’s actions. So what did the defense lawyers do? They gave more materials to the experts to persuade them to change their conclusions. And on at least one occasion, met with the expert, along with Douglas Kennedy, to persuade him.

In other words, the defense took multiple bites at the apple. Instead of giving all of the information at the outset, they gave only some, and when the reports didn’t come back the way they liked, they gave more. And with one of the experts, went back to the well three times for amendments.

From the well-reasoned opinion of Judge William Giacomo with my bolding on the important stuff that the defense lawyers wanted changed:

During July of 2014, each plaintiff submitted to three IMEs performed by defendant’s insurance company. Plaintiff Anna Lane submitted to a psychological lME with Dr. Richard DeBenedetto, an orthopedic IME by Dr. David Elfenbein, and a neurological IME by Dr. Elliott Gross. Plaintiff Cari Lucania submitted to a psychological IME with Dr. Victoria L. Londin, an orthopedic IME by Dr. David Elfenbein, and a neurologicallME by Dr. Ronald Silverman. With respect to Anna Lane, in July 2014, Drs. DeBenedetto and Elfenbein each issued an IME report with a finding that her injuries were causally related to the January 7,2012 incident. Dr. Gross found no causal relationship. With respect to Cari Luciano, Drs. Londin and Elfenbein each issued an IME report with a finding that her injuries were causally related to the January 7, 2012 incident. Dr. Silverman found no causal relationship.

With those reports of causation in hand, defense counsel then went to work to get them changed:

Thereafter, in August of 2014, defense counsel sent Drs. DeBenedetto, Elfenbein, and Londin additional information with regard to plaintiffs (including plaintiffs’ deposition transcripts) and medical records (including the neurological IME reports which found no causal relationship) together with a copy of Judge Donohue’s November 20,2012 written decision in the criminal matter.

Why disqualification? Because these doctors are witnesses, and the lawyers that asked them to change their reports are now also. Plaintiff’s counsel wants to call them to show, no doubt, his opinion of chicanery in the defense of the case. And you can’t be both a witness and counsel in a case, as it violates our disciplinary rules.

From the court regarding the Dr. David Elfenbein, regarding the three separate addendums to his report:

On July 8, 2014, August 20, 2014, and October 10, 2014 Dr. Elfenbein issued addendums to his original July 2, 2014 report. The July 8, 2014 and August 20, 2014, addendums further indicated a causal relationship between Lane’s injuries and the incident. However, on October 10,2014, after attending a meeting, at Dr. Elfenbein’s office with defense counsel and defendant, Dr. Elfenbein issued a third addendum wherein he no longer found Lane’s injuries were causally related to the incident. In his October 10, 2014 addendum Dr. Elfenbein states “Attorney Douglas presented mewith medical records and did review some key aspects of them with me. He then asked me verbally and in writing to review those records in their entirety and readdress my conclusions regarding causation in my Independent Examination.”

Interestingly, the opinion by Judge Giacomo exposing this incident is likely to significantly impair Dr. Elfenbein’s ability to conduct these exams in the future. He is likely to be, shall we say, harshly criticized in future cross-examinations with a claim that he will bend to the hand that feeds him.

All the reports were subsequently changed to reflect that there was no causation for the injuries. Not just one report, but all. And that makes the lawyers who did this at, Douglas and Newman, important witnesses.

As per the court, in ordering disqualification:

In order to disqualify counsel, a party moving for disqualification must demonstrate that (1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party (see S & S Hotel Ventures Ltd. Partnership v 777 S. H., 69 NY2d at 446; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609 [2nd Dept 2004]).

Here, plaintiffs have established that the testimony of defense counsel Douglas & London, PC regarding its conduct and interactions with the IME doctors, including what occurred during the meeting with Dr. Elfenbein, to warrant a change in their original determination that plaintiffs’ injuries were causally related to the January 7,2012 incident is necessary to their case and would be prejudicial to defendant. (See McElduff v. McElduff, 101 A.D.3d 832, 954 N.Y.S.2d 891 [2nd Dept 2012]).

Let me be clear about something: This does not happen. In the world of personal injury litigation, this is exceptionally rare. In fact, I’ve never before heard of it happening.

But the decision is, in my opinion, correct. If a lawyer forwarded additional documents to one doctor, the result may well have been different. But three doctors? And meeting with one for the express purpose of getting that report changed for a third time? Yeah, that lawyer is now a witness. And that can’t be good for the defendant, Douglas Kennedy.

The court here effectively protected Kennedy from the conduct of his own counsel. It’s better for him to have them as non-party witnesses who will be skewered than to have them as his counsel in the well of the courtroom who will be skewered. The decision is here:Luciano and Lane v Kennedy

Hat tip: Eliott Taub

Updated:  The New York Law Journal also has the story, on its front page, with interviews of the attorney and defense counsel’s defense of their conduct. They claimed, in part, that they didn’t have all the information:

“It was plaintiffs that withheld information, downplayed information and the doctors didn’t have it…”

The problem with that is that, as Judge Giacomo writes, some of the information furnished to the doctors apparently pre-existed. This includes the plaintiff’s deposition (usually available) and the court opinion in the criminal matter.

Also, a second decision exists from Judge Joan Lefkowitz, dated July 2nd, where she deals (via Order to Show Cause), with the demands by plaintiff for many of the documents at issue regarding the medical-legal exams. See: Luciano v Kennedy (Lefkowitz Decision). She also notes that Douglas Kennedy actually went with his lawyers to the final meeting with Dr. Elfenbein.

 

March 16th, 2015

Another Defense Orthopedist Slammed By Judge

You remember, dear reader, that one of my concerns about the fair administration of justice in personal injury cases here in New York is the fact that defense doctors are often less than candid in the independent medical-legal exams that they do?

Dr. Robert Israel was sanctioned by the state. Dr. Michael Katz excoriated by Justice Duane Hart. One doctor decided that what’s “normal” is what the insurance carrier tells him. Another reveals how to leave out of the reports things that may be beneficial to the plaintiff. And I uncovered in my own investigation a bevy of doctors doing “quickie” medical exams.

Now comes before us Dr. Julio V. Westerband, yet another orthopedist. And he was benchslapped big-time last week in an opinion by Justice Arlene Bluth. He seemed, in my humble opinion, to be oddly challenged by the idea of writing objectively for an “independent” exam.

This is the set-up: Plaintiff was standing on the sidewalk outside a car wash. Defendant driver lost control of his car and hits the plaintiff. Plaintiff suffers injuries, including a broken ankle.

I know, it’s complicated. But this is the interesting part: to proceed in an auto case in New York you have to show a “serious injury,” and one of the ways of doing that is by showing a fracture. So the fact of fracture is particularly important.

Plaintiff moved for summary judgment, both on liability and on the issue of serious injury. Liability wasn’t contested, but the fracture was.

How can Dr. Westerband — who did a medical-legal exam of the plaintiff on behalf of the defendant — contest the fracture that repeatedly showed up on the x-rays? Easy! By not reading the x-rays and simply ignoring the written reports that he concedes explicitly state that the ankle is fractured.

No, really, I’m not kidding you.

Plaintiff put in proof through his own orthopedist, who treated the plaintiff and saw the records, that the ankle was broken.

But Dr. Westerband? Could he be bothered with objectivity? Well, if he did that, then the defense would lose, right? If multiple radiology reports all say fracture we can pretty much guess that there will be a fracture, right?

And he did see the reports, for in his own report — summarizing the records he reviewed and his medical-legal exam — he indicates that all four of the ankle x-rays reports show a fracture. Westerband Report

But instead of writing “fracture” in his own report, which is a magic word according to our Legislature, he writes  “questionable” fracture. Based on what is it questionable you ask? Funny that you should ask, because Justice Bluth asked the same thing, and then wrote:

He did not review x-rays and did not disagree that plaintiff suffered a broken ankle in the accident. Rather, with no support whatsoever, he concludes “status post questionable right ankle fracture.” Maybe if he looked at an x-ray he wouldn’t have a question.

Zing!  The defense, having failed to raise an issue of fact on the issue of a fracture with this idiotic argument, lost the motion for summary judgment. They should probably be grateful that plaintiff’s counsel didn’t move for sanctions. Given Justice Bluth’s obvious annoyance at having to even hear this nonsense, it wouldn’t surprise me if she would have considered it.

Dr. Westerband, by the way, has previously testified that he testifies about 25 times per year and that half of his income comes from medical-legal exams and testifying. I know, you are shocked.

The decision is here, and as you can plainly see, handwritten. So I’m publishing it now also in a Google-friendly way, since handwritten opinions aren’t likely to get officially reported, and others may wish to cross-examine Dr. Westerband on why he makes decisions on fractures while both ignoring the x-ray reports and failing to look at the films: Westerband Decision

You’re welcome.

 

 

October 31st, 2013

Can You Secretly Record the Medical-Legal Exam?

SecretSurveillanceVideoOver the summer I did a series of pieces on Dr. Michael Katz, who got busted by a judge for lying under oath about the length of the medical-legal exam that he did on the defendant’s behalf. He was claiming it was 10-20 minutes or so, yet a secretly recorded video had him at just one minute and 56 seconds. The judge wasn’t pleased.

A mistrial was declared and the good doctor was referred to the District Attorney for possible perjury prosecution, to the Administrative Judge for possible civil contempt and to the Department of Health – Bureau of Professional Medical Conduct to evaluate his fitness to practice medicine.

I covered a lot of angles in that series, even doing original research on the length of exams by other “frequent flyer” experts that insurance companies rely upon, and finding an average length of under five minutes for those I looked at.

But one piece was missing from my series: Is it permissible for plaintiffs’ representatives that accompany them to these exams to surreptitiously videotape the doctor doing the exam, and if this is done, does that video need to be exchanged? The reason it was missing is that there really isn’t much in the way of law in this area.

To be sure, Justice Duane Hart‘s initial reaction in the Katz case was that this was improper conduct by the plaintiff, and initially sanctioned him. That sanction was withdrawn, but in the process he had also declared a mistrial on a case that had been going for a month. The problem that Justice Hart had to wrestle with is that there is no statute governing this and little case law.

This week on that subject, in the New York Law Journal, comes an article by Ben Rubinowitz and Evan Torgan (Turning the Table: Cross-Examining IME Doctor Using Video of Exam, $ub). They are, by all measures, well respected attorneys here in New York, and these guys frequently lecture on various aspects of personal injury practice.

In the absence of either statute or case law to analyze whether it’s acceptable to video, they turn to ethics opinions. But:

[T] he ethical opinions regarding secret video-recording specifically fail to provide clear guideposts for attorneys. For example, the American Bar Association, in opinion 01-422, found that, in general, undisclosed taping by an attorney or his agent was not in and of itself prohibited. In accordance with that opinion, The New York City Bar modified its previously held position that undisclosed videotaping was unethical, holding that such conduct was permissible, but only where the lawyer “has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good.”

What constitutes “a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good”? Good question, glad you asked. And no, I don’t have the answer because such answer does not (yet) exist. Do I think it is a generally accepted societal good to catch a doctor doing a 2-minute exam that he claims was a 15-minute exam? Yep, I sure do. The scoundrels should be purged from our midst if we would like our system of justice to have more integrity.

It’s unclear to me why recording such exams should be a problem. Defendants, after all, are free to do secret surveillance of plaintiffs. Why shouldn’t a plaintiff be able to do likewise to the defense medical examiner, especially when we have excellent reasons to believe there is widespread corruption going on? The doctor isn’t even a party to the action.

Back to Rubinowitz and Torgan:

As it relates to personal injury actions, defense attorneys have become well versed in the use of videos to discredit a plaintiff’s claim of injury. While the law regarding the surreptitious taping of a plaintiff in a personal injury action has developed over many decades the issue of the propriety of the taping in the first instance and its disclosure seems to have been answered: There is no prohibition against such taping and there are now definitive time periods in which disclosure of the video must be revealed.

When it comes to the videotaping of the IME, however, the law is not so clear. In New York not only is there no statute directly on point but there is a paucity of case law supporting or prohibiting such conduct. The question that will likely be addressed in the near future is whether the plaintiffs attorney or his agent should be permitted to videotape the independent medical examination, and if so, when disclosure should be made. Many see no difference between the defendant’s right to surreptitiously videotape the plaintiff and the plaintiff’s right to surreptitiously videotape the IME. Both the plaintiff and the defendant are seeking to use the video for a similar purpose: to discredit the credibility of an individual through the use of extrinsic proof.

The sooner this gets resolved by the appellate divisions, the better, perhaps with a bit of help from the various ethics committees. But from were I sit, there is simply no sound reason to object to the practice. Every other formal part of litigation where evidence may be presented to a jury is recorded somehow, without exception. That a doctor would be able to claim something happened at a medical-legal exam — which is very much a formal procedure — when the plaintiff says no such thing happened, is very easily remedied.

Why would anyone be upset about making the process more honest? Why should there even be ambiguity over how long the exam took or whether certain tests were done?  As I noted over the summer when discussing next steps for this problem, technology is now completely unobtrusive. And with Google Glass coming along, the filming couldn’t be easier.

 

October 21st, 2013

Dear Judge Smith — You gotta be kidding me.

JudgeRobertSSmith

Hon. Robert S. Smith

Judge Robert S. Smith sits on New York’s highest court, our Court of Appeals. Last week he wrote a dissenting opinion in a case dealing with auto collisions and insurance fraud, Ramkumar v. Grand Style Transportation. This is my open letter to the judge in response to that dissent:

————————-

Honorable Sir:

Let me start by stating that I write this letter with great trepidation. If you take offense at either the content or the tone, you have enormous power as 1/7 of our top court to repay my clients, or other injury victims, in ways that can be quite unfriendly.

But your dissenting opinion last week in Ramkumar v. Grand Style Transportation made me angry and forces me to pound on this keyboard, given your assumptions that the no-fault system is riddled with fraud by claimants. My concern is that if you feel this way, then other jurists might also, and claimants do not appear before our courts with the scales of justice in equilibrium.

For those that missed the case — this is, after all, an open letter and I hope to educate by doing it this way —  this was a simple matter of a plaintiff testifying that he stopped getting treatment after sustaining injuries in an auto collision, because he “was cut off” by the insurance. Those of us on the plaintiffs’ side of the “v” refer to this as standard operating procedure. Insurance companies are in the business of generating profits and satisfying shareholders, and cutting off claimants — oft times with sham exams that last just two to three minutes– bolsters those profits. This is not news to those of us that represent such people.

At issue in Ramkumar was the simple matter of determining what level of proof was needed by the plaintiff to oppose a motion to dismiss his case that was based on defendant’s assertion that the plaintiff lacked a “serious injury” in the ridiculously vague way the Legislature has defined it. The majority said his statement that he wasn’t getting treatment because he was cut off was enough to raise a triable issue of fact. But you dissented.

In arguing for more proof, you went on to allege that there is rampant fraud in the No-Fault arena. But — and this is what raised my anger —  100% of your comments address this from the plaintiffs side of being responsible for fraud. And where is the data coming from for these reports? Insurance companies with a vested interest?

Let me suggest to you, Judge Smith, that there is indeed rampant fraud. Systemic fraud. Nauseating fraud that affects many thousands of cases per year. To prove this, I submit this bill of particulars–

  • A New York Times exposé on sham medical exams by the insurance industry regarding Workers’ Compensation exams, where one doctor that did those exams said:

    “If you did a truly pure report 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”;

  • Dr. Robert Israel, an orthopedist doing 1,500 defense medical exams per year, is hit with three year sanction for his conduct in doing defense medical exams;
  • Dr. Michael Katz, an orthopedist who once testified to doing 750-1,000 defense medical exams per year, busted for lying on the stand about the length of his exam, testifying it was likely 10-20 minutes. A secret recording documented it at merely one minute 56 seconds;
  • An analysis of exams by orthopedists Edward Toriello (1,500 – 2,000 per year), Lisa Nason and neurologist Jean-Robert Desrouleaux (1,000 – 1,500 per year) all show disturbingly short exams done for insurance companies, averaging less than five minutes per exam, and many times lasting only two to three minutes.
  • Dr. Joseph Tuvia, another frequent flier for the insurance industry (radiology, reviewing 1,000 films a year for litigation), magically has at least five different signatures on his reports that are allegedly signed under oath.
  • Dr. Harvey Goldberg is instructed by the insurance company that hired him to do an exam of the plaintiff to leave out of his report things that would be beneficial to the plaintiff. His original report, it seems, had a favorable causality finding for the plaintiff and he was asked to remove it from his report;
  • An orthopedist that I cross-examined last month, who testified that in describing range of motion losses, he used a different standard of “normal” in another case. Why? Because this “conforms to what this carrier says is normal.”

Now you will notice, your honor, that if you click those links, you will see that all of those stories and investigations, except for the Times piece, were done by me. Think about that for a moment: I’m a solo practitioner, with a full time practice, that blogs a few hours a week.  If I can find that much evidence of tainted and quickie defense medical exams, how much do you think a real investigation would  find? Does the phrase “scratching the surface” seem like a fair one?

We are talking about the potential for an unprecedented level of insurance fraud being perpetrated by the insurance industry.

And after claims are fraudulently denied in No-Fault, what is done with the data? It’s used in a self-fullfilling report to claim insurance fraud? I’m sure you remember the old saying about analysis: garbage in, garbage out.

I don’t blame you, of course, for having skepticism about claims. This what the insurance industry peddles to the world. What troubles me greatly, however, is that your skepticism appears to be one-sided and therefore imbalances the judicial scales before the evidence is even weighed.

You made this comment in your dissent:

If plaintiffs and their witnesses are willing to say under oath whatever they have to say to get past summary judgment, they will succeed in doing so….”

And what of the insurance company doctors — those comically referred to as “independent” as they earn six figure sums (or more) from such exams? Why should a judiciary dismiss cases based on such reports instead of, as Justice Scalia once famously wrote, testing their credibility “in the crucible of cross-examination“?

You seem to trust these insurance doctors very much, as you wrote:

If there is indeed a reasonable explanation for plaintiff’s cessation of physical therapy, he should have had no trouble in offering much better proof of it. He could have submitted an affidavit in opposition to summary judgment, identifying his no-fault carrier, attaching a copy of the written communication, or describing the oral one, in which the carrier cut him off, and saying what, if any, reason the carrier gave.

That any judge would accept an insurance doctor’s opinion on the real reason so many injured people are cut off from benefits reveals to me a judge that is, I’m sorry to say, deeply out of touch with what is actually going on. I see an industry orchestrating what are, little doubt, many thousands of sham exams every year. Those of us in the trenches of practice see a world appearing vastly different to what you’ve described in your view from Eagle Street.

This is not a new issue to you. Back in 2009, in Bazakos v.Lewis, you wrote the majority decision on a case dealing with these so-called “independent” medical exams, (deciding that if one sues a doctor for injuries incurred during the exam, it was subject to the 2 1/2 year medical malpractice statute of limitations).

Your boss, Chief Judge Lippman, made this observation about what is ” known euphemistically as an ‘independent’ medical examination”:

These exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee.

Just to be clear, there are countless cases of No-Fault carriers cutting off benefits claiming no injury, or that treatment wouldn’t benefit the victim, only to have these individuals go in for surgery on knees, shoulders, neck, backs and other body parts. Identical problems are rife in these medical-legal exams of all kinds.

Your faith in the so-called IME seems deeply misplaced given the substantial evidence of insurance company fraud and exploitation, which seems clearly in need of investigation by the Attorney General or Department of Financial Services.

My questions for you judge are these: How would you feel if a 3-minute orthopedic exam would be the basis upon which courts and juries would weigh your claim if you’d been injured? And if you feed your family with physical labor instead of with the pen, and those injuries therefore had a more dramatic effect, how would you feel about that 3-minute exam? And given the substantial evidence of problems, how does a judge simply accept as true the proclamations of an insurance industry that profits from it?

Respectfully yours,

Eric Turkewitz