We have been following a fascinating and well-written series of articles by New York State attorney Eric Turkewitz, about the ongoing case of a New York orthopedist accused of perjury for lying on the stand about the duration of an independent medical exam (IME) he was hired by the defendant insurance company to perform on a plaintiff in a personal injury case. While the physician claimed to have spent 10-20 minutes completing the IME, the plaintiff’s attorneys had secretly filmed the IME, proving that the physician spent a mere two minutes, not nearly enough time to finish a complete exam, nor enough time to arrive at the medical conclusions about the plaintiff’s injuries that the doctor presented on the stand. The evidence that the physician lied about the IME resulted in a mistrial. In a separate case, another New York physician is also accused of lying on the stand.
Eric Turkewitz comments in his first article in the series:
“Together, Drs. Katz and Israel have no doubt sent New York’s insurance carriers frantically scrambling, as the two of them were responsible for thousands of insurance exams each year, the results of which are now all thrown into question. The scope and scale of insurance fraud being perpetrated — by the insurance companies themselves — could have resulted in hundreds of millions of dollars in payments being withheld.”
Our personal injury clients at Brett Murphy are often required to be evaluated by physicians hired by defense insurance companies, and the results of these IMEs strongly influence settlement negotiations with insurance adjusters. To even the playing field, we always have our clients evaluated by a board-certified physician hired by our firm. This ensures that the true medical condition of the client is honestly reported and is made part of the negotiation or litigation processes. And during the IMEs done by defense-hired doctors, we always have a staff member attend and make a video recording of the exam.
In part 2 of his article series on the topic, Mr. Turkewitz continues following the case of the New York doctor accused of perjury. While the judge in the case could not directly sanction the physician, since the doctor was not a party to the lawsuit, the judge did send the matter to an administrative judge, the prosecuting attorney, and the Department of Health to:
hold the physician in civil contempt of court;
prosecute for perjury;
evaluate the doctor for fitness to practice medicine.
What is truly impressive about this aspect of the story is that, with the efforts of one angry judge, the decades-old system of false medical reporting by physicians who often earn $1 million+ a year for doing defense IMEs, may begin to crumble. And had the plaintiff attorney not recorded the 2-minute long exam and brought it to the attention of the court, this system may have continued on indefinitely in New York State.
For injured people in Washington State where we practice, IMEs are a common feature of the claims process. Injured people are faced with these insurance medical exams in two different phases of litigation.
First, clients participate in IMEs during the early stages of their treatment when a person’s Personal Injury Protection carrier, that is, the “no fault” portion of their insurance coverage, will order the exam. The “PIP IME” is usually required to continue coverage based on the Cooperation Clause of the insured’s policy. Because the PIP IME is required, it is usually not disclosed to adverse parties in litigation. However, at our firm we treat these IMEs no differently than any other medical-legal exam requested of our client. If our client has retained us early enough for us to get involved, we treat these examinations with the same level of seriousness as any medical examination.
Second, if an injured person is forced to file a lawsuit in order to obtain fair compensation for their claim, they have typically put their physical condition at issue and thus will be required to submit to an IME. This IME often called a “CR 35 exam” in Washington. This is the exam that could ultimately form the basis of the insurance company’s defense at trial and thus should be taken very seriously. We never allow our clients to attend a defense IME alone and make a recording of the entirety of the exam.
In part 3 of the series, Mr. Turkewitz completes research to determine the actual length of this physician’s IMEs, collected from a databank run by an organization called IME Watchdog. According to Mr. Turkewitz’s research results, the IME physician spent an average of 4 minutes and 10 seconds on each exam, a time frame that is impossibly brief given the importance of the findings and how the exam results may affect a client’s ability to receive Worker’s Comp benefits or secure an appropriate settlement for a personal injury claim.
We mentioned above that all our clients are accompanied by a staff member during a defense/insurance medical exam. This is a simple way to check unethical conduct by a doctor hired by an insurance company. Before we agree to allow our clients to undergo an IME, we force the defense to stipulate that our staff may attend and video record the entire exam. This video is an invaluable tool for neutralizing any unsupported findings by the defense doctor. It also put the doctor on notice from the beginning that the examinee is represented by vigilant counsel who will not accept unsupported opinions or findings.
In part 4 of the series, Mr. Turkewitz looks for and finds evidence that the practice of defense IME physicians conducting short, fraudulent exams to ensure that insurance companies keep their settlement payouts low is widespread and long-standing.
Of course, one could reasonably argue that a plaintiff’s physician, hired by a personal injury attorney to produce a report favorable to the plaintiff’s claim, could also engage in fraudulent exams, which has most certainly occurred as well. This point demonstrates the flaw in the current system: the practice of requiring an IME does not produce an independent, objective measure that evaluates a claimant’s true medical condition as a result of an injury or accident. This objective evaluation must come solely from the client’s medical records as created by the physicians and medical facilities that treated the client during the course of recovery from their injuries.
Mr. Turkewitz promised to continue this series of posts on this fascinating topic, and we will continue to follow his work. Given the current practice to require plaintiffs to submit to IMEs conducted by physicians who often earn vast amounts of income to support the agenda of the insurance companies, the issue is relevant, timely, and affects virtually all plaintiffs engaged in personal injury claims.