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The New York Times Tells The Story Behind "Independent" Medical Exams

bad doctorA big issue in personal injury litigation is insurance companies’ use of hired guns to give opinions that our clients aren’t hurt. Sometimes the hired guns simply review our clients’ medical records and sometimes the hired guns actually “examine” our clients. Then the hired guns write reports saying that our clients aren’t injured.

Insurance companies and defense lawyers try to hide the nature of these exams by calling them “independent medical exams.” That name borders on fraud; there is nothing independent about these exams. Unlike treating physicians, whose primary responsibility is trying to make sure the patient heals, the sole purpose of these hired guns is to minimize payments to injured persons.

Those of us that practice personal injury law have known the true nature of these exams, but now the exams are in the public’s eye. Monday’s issue of the New York Times had a great article on the use of “independent” medical exams to reduce payments due New York worker’s compensation claimants. The Times reviewed several cases and interviewed doctors involved in the process.

An enlightening part of the Times’ story compared videotapes of the exams with the eventual reports that were created. The Times noted numerous incidents where “independent” doctors noted on the videotapes that the victims were injured only to have reports show up saying the victims’ injuries were being exaggerated.

The practice was criticized by all involved. The new interim medical director for the NY worker’s compensation board, a physician at Mt Sinai Medical Center, noted:

You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did. There are some noble things you can do in medicine without treating. This ain’t one of them.

Another doctor involved in the process used to certify these physicians stated:

Basically, if you haven’t murdered anyone and you have a medical license, you get certified. It’s clearly a nice way to semiretire.

One root of the problem is that if the physicians provide opinions adverse to the insurance companies, they know that they won’t be hired again. It’s part of the game. Dr. Hershel Samuels, one of the physicians exposed in the article, stated:

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.

While the article focused on the New York worker’s comp system, the same problems exist here in Texas personal injury cases. The doctors are hired, and they all know the rules of the game: too many findings that victims are injured, and the doctors are not hired again.

Sometimes, the problem goes even further. I recently deposed a doctor hired by a defendant through a third party firm. The defendant hired the third party company and then the company hired the doc. The doc prepared a long report after a quick review of my client’s records, and a major part of the report was a criticism that the charges from some of my client’s medical providers were too high for the services rendered. At the deposition, the doctor admitted that he didn’t have a clue about the charges, but that the company that hired him had filled in that part of the report for him. Even the defendant lawyer seemed to find the situation humorous.

So what do we do? The Times article stated that the best defense is a videotape the exams. When our clients are referred to these defense exams, we push to have them videotaped.

The next remedy is collaboration. Attorneys who are members of the Texas Trial Lawyer’s Association, our state-wide group of lawyers who regularly represent plaintiffs, are wonderful about collaborating with one another for the good of our clients. If my client is referred to an IME doc, I can request information from lawyers around the state. We may be able to get copies of other reports, depositions, etc. You’d be surprised how many docs prepare reports for different patients that are identical to one another. (I tell injured persons that when they hire an attorney, they would be well-served to make sure that the attorney is a member of the Texas Trial Lawyer’s Association, and this collaboration is one of the major reasons for my suggestion.)

I encourage you to read the article and leave your thoughts.

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