This is a lesson on how to fool a jury. And how to get caught. It’s about doctors and lawyers and ethics that belong in the sewer. It’s about potential insurance fraud. And it is an exposé of a very seamy side of personal injury trial practice. And I will name names. It might be the most important post I’ve made since I started blogging, and it comes out of a Manhattan trial that just concluded.
The story emerges because doctors who performed “independent” medical exams in a personal injury case were told, in writing, to game the system. A document was discovered in the file of a neurosurgeon that included this: If prognosis appears good, then state that – otherwise be silent.
We start with a basic aspect of personal injury practice: When you claim injuries to your body in a lawsuit the other side is entitled to have a doctor (or two) examine you to see if your claimed injuries are legitimate. Courts and defense lawyers like to call these “independent” exams. But are they?
The scene is Supreme Court in Manhattan (this is the main trial court, not the top appellate court). And on the stand is Harvey Goldberg, a physiatrist that was hired by the defendants to examine the plaintiff, Gerard Malloy. Malloy had suffered a terrible back injury when he tripped over an exhaust fan that had been left in a darkened hallway in a building. In the well of the courtroom stands David Golomb, one of the city’s top trial lawyers, cross-examining Goldberg.
But all is not right with the report from the exam that Goldberg holds in his hands, because something seems to be missing. Like his opinions. So Golomb asks him, on a hunch, if there was another version of the report that did contain his opinions. Ummmm, well, now that you mention it, there had been another version comes the reply. Golomb presses on and discovers that Goldberg had not only been asked to edit his original report, but complied. He apparently took his opinion on the cause of Malloy’s injuries out of the original report. The testimony looked like this from a transcript provided to me:
Q: So why is the report dated more than [one month after the exam], December 12 of 2006? Why? If you don’t know, you can say that too, Doctor.
A: I don’t know.
Q: Was there a prior version of this report? Was it sent to anybody to look over or edit?
A: There may have been a prior draft that was corrected.
Q: Changed? We don’t know, do we?
A: There was an instance of the causality originally being requested, and then I was told that the causality was not requested.
Q: So if I understand you, you were told by the people asking you to prepare this report not to offer any opinion on what the cause of Mr. Malloy’s injuries, if any, or problems, if any, were? Did I just understand that answer correctly?
Why was removing causation so important? Because plaintiff Malloy had been in a car accident five years earlier, and the issue of whether it was the car accident or the trip that caused the back injury was pretty darn important. And Goldberg was asked to take his opinion out. And he complied, thereby creating a new report that he knew was incomplete.
Remarkable? Keep reading because it gets worse. The next day neurosurgeon Douglas Cohen prepares to take the stand, as he had also examined Malloy for the litigation. But before Cohen takes the stand, Golomb sees the doctor talking with the defense lawyer in the hall. And the defense lawyer is holding a paper in his hand that came from the doctor’s file. And the lawyer is looking surprised, and very unhappy. And he knows that Golomb is watching the interaction.
With Cohen on the stand, Golomb discovers what that paper is. It is the instruction sheet for the doctor directing him to omit opinions from the “independent” report that are favorable to the plaintiff. Those marching orders, published here for the first time, included (IntegratedInstructions.TIF, another version of the file IntegratedRisk-Instructions.jpg):
- Point out whatever findings or claims are not related [to the lawsuit]. Otherwise be silent on causal relationship.
- If prognosis appears good, then state that – otherwise be silent
- If you can state that plaintiff can participate in all normal activities, do so. If not, be silent
This instruction sheet form from the folks that hired him came from a company called Integrated Risk Services Inc., whose job it was to set up these “independent” medical exams. The instructions appear clear that this was not to actually be an independent report, but in fact, was designed to be a deliberately incomplete and therefore deceptive report. And Cohen had errantly brought it with him to court. That form instruction sheet, by urging deliberate omissions, essentially asked the doctors to falsely claim their exams and reports where “independent.”
So who runs this company and asks these doctors to do this?
A review of the website for Integrated Risk Services, Inc. reveals that this is “ATTORNEY MANAGED INDEPENDENT MEDICAL CONSULTATION SERVICES.” Attorney managed, eh? I wonder which attorney is urging deceit for “independent” exams? A corporate search through the New York Department of State web site reveals the company registered without a name in a post office box in Great Neck, New York, while the web site for the company gives a different PO box in Syosset, New York, also without any names. Nice.
Edit: On 3/25/08 Steven Fruchtman, an attorney out on Long Island, called to say that the company was his. My prior investigation, which tracked the company down through a residential address of his father, has now been rendered moot and been removed. Steven Fruchtman informs me that his father has nothing to do with his business.
Is it called lying when you deliberately omit pertinent opinions in an exam you are claiming is “independent?” Is it suborning perjury by asking someone else to do that on the witness stand? Is it insurance fraud to be so deceptive if the objective is to deprive an individual of insurance funds to which they may entitled? If a plaintiff was deceptive, would the insurance industry and big business scream fraud and go running to the American Tort Reform Association? Is there one standard or two?
I leave it to you, dear reader, to ponder whether ethical violations have occurred for doctors and attorneys involved. And this is not just left to the reader, but to the NYS Department of Health. And to the attorney ethics committees of the state if, in fact, this was an attorney managed company and perhaps, to the NYS Attorney General should any of them stumble upon this little exposé.
Update, 3/25/08: After Steven Fruchtman called today, I made edits to this post as a courtesy to him, including the removal of information regarding his father. He has been invited to comment here if he sees errors.
Full Disclosure: I know David Golomb for over 25 years and he trained under my father when he was a newly minted attorney.