It is unlikely that the name Robert Israel means much to many of my readers. But if you are a practicing personal injury lawyer in New York, it means a whole lot. And the fact that he was just placed on probation for professional misconduct means a whole lot more.
Dr. Israel has been, for many years, one of the most frequent orthopedists that defense firms and insurance companies turn to for medical-legal exams. These are done so that the defendants get an “independent” view of a plaintiff’s injuries, apart from the opinions of the treating doctors. Then he comes in to testify. It’s fair to say that he has far more experience in the courtroom then the vast majority of attorneys in the country.
How many litigation exams has he done? When I cross-examined him five years ago, he said he was doing 30 of these exams per week; 1,500 per year. Robert Israel Cross (page 20). He’s testified hundreds of times, and never for a plaintiff unless it was his own patient (page 33). That is a stunning business that also has a remarkable impact on those who’ve brought suit for personal injuries.
And what was he placed on probation for? Well, I wouldn’t be writing this post if it was for getting drunk and tossing his skivvies at a cop. That would be wholly unrelated to his practice and, I think, a cheap shot.
No, he was sanctioned because of his conduct doing these types of “independent” medical exams, which are more properly referred to as Defense Medical Exams. (Because the docs that do these things aren’t being selected by the court.)
As per the charges against him, it all deals with his conduct performing these medical-legal exams by failing to take adequate, accurate and complete medical histories and by failing to note accurate, complete and appropriate physical exams. This is, as it happens, directly in accord with the testimony I took from him where he botched (deliberately or not, I don’t know) the history of my client, making statements of things that were never claimed in the lawsuit.
(By coincidence, I blogged that trial in day-in-the-life format in 2008. This was part one.)
How many victims were turned out of court due to Dr. Robert Israel’s misconduct? Only he knows. Maybe. Will anyone turned out of court due to questionable testimony he gave sue him? Intriguing question, glad you asked.
As per the three-year probation agreement that he consented to, online here, he agrees that his:
…license to practice medicine in New York State shall be limited to preclude me from engaging in any practice as an Independent Medical Examiner as of March 2013. I shall not contract or agree to perform, nor perform Independent Medical Examinations.
<long low whistle>
Now here is a big legal issue for all those defense firms and insurance companies that thought they were being so smart in hiring Dr. Israel: The consent order does not preclude him from testifying. He can’t be an examiner for the next three years for sure, but the examination part is done. His records and reports (for what they are worth) are already made. There is no reason he can’t testify, other than the fact he will be (justifiably) torn to bits. But being torn to bits is not the same as being unavailable to testify.
That means there’s a good chance they will all be stuck with him. The insurance companies got the benefit of his exams previously and now they will get the downside. Karma. Sleeping with the devil. Laying down with dogs and picking up fleas. Choose your metaphor or proverb.
Will a judge allow the insurance companies to take a mulligan on the medical-legal exams? Will a plaintiff respond by saying, hey, if you don’t like the guy, let’s re-open all those cases where Dr. Israel previously testified?
Now if a doctor that performed an exam dies or becomes incapacitated during litigation, they would be entitled to another exam since s/he would be unavailable. But Dr. Israel is still available and is not precluded from his regular practice as an orthopedist.
The order goes into effect this Friday, June 7th.
Update: July 2, 2013: In the comments is a discussion as to whether this sanction can serve as a basis for defendants obtaining a second defense medical exam, and pretending that Dr. Israel is unavailable to testify based on the order. That issue has now been resolved, courtesy of attorney Jonathan Fier who obtained an opinion on the subject from the Department of Health. That letter is here Robert-Israel-OpinionLetter and states, in relevant part:
“…the order neither bars all testimony nor permits all testimony”
“If licensee, in the future, testifies about acts performed, observations or findings made or opinions and/or diagnoses rendered, respectively, at a time that predates the effective date of the Order, we would not consider that a reportable violation.”
“If, in relation to any Independent Medical Examination occurring at any point in time, the licensee engages in or testifies regarding any further act of observation. finding, opinion, and/or diagnosis (including but not limited to providing his opinion on any subsequent and/or supplemental medical we would consider that to be reportable as a possible violation.”
What a interesting result. What was it that finally got the board to take action? Who made the complaint? ( a lawyer, a client?) and how was the evidence found? Very very interesting.
What was it that finally got the board to take action? Who made the complaint? ( a lawyer, a client?) and how was the evidence found?
The document you see is the only public one.
Eric: You are incorrect about your conclusion that he can testify. The order clearly states he cannot engage in any activity in connection with this consent order with reference to IME’s.
I read the order differently. He agrees to this:
I shall not contract or agree to perform, nor perform Independent Medical Examinations.
Yet you have expanded that agreement to add “in connection with.”
That not all the order says. It specifically states (top page 2) that he is enjoined from “engaging in any practice as an Independent Medical Examiner”.
I am aware of a few cases where this issue has reached the Second Department. IME takes place, plaintiff files note of issue, doctor is disciplined (in that order). The Court has consistently said that the defense isn’t entitled to another physical exam at that point, and they are stuck with the disgraced doctor. Though I don’t see what the note of issue should have to do with it.
I wonder if the carriers knew this was coming. Good luck with that threshold motion guys. Given how much Geico has tightened up, I’m going to take particular pleasure in hitting them over the head with this.
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Eric, I love you. I just had a client in my office today, who was examined by this Dr. a few weeks ago. This just made my day.
I do not think this is a big windfall for plaintiffs’ attorneys. If the insurance company does not call him and they get hit with missing witness charge the jury will never know about this. Also some judges will not allow the missing witness charge if the report states that plaintiff not hurt… I do not see the big advantage to this unless he is on the witness stand. No defense lawyer will allow this to happen. Anyone disagree?
If the insurance company does not call him and they get hit with missing witness charge the jury will never know about this.
I have no problem getting a missing witness charge due to his absence. It can be quite powerful.
Also some judges will not allow the missing witness charge if the report states that plaintiff not hurt.
Given the sanction against him — for just this reason, the problems with his defense medical exams — a negative report is meaningless. I think it would be reversible error not to give the charge.
See the update: As per the Department of Health, Dr. Israel is not prohibited from testifying based upon the sanction he received.
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I am a legal assistant in a major personal injury firm, and I was thrilled to see Michael Katz get nailed. I have personally witnessed a number of his exams and reviewed the subsequent fraudulent reports. I received numerous complaints from unaccompanied clients that Michael Katz loved to belittle and badger the folks that were his bread and butter. He loved playing detective and pointing out in his reports that examinees were “less than forthcoming” in their accident accounts, were “malingering” when examined, and so on. takes one to know one! There are plenty of other IME docs pulling the same crap. time for a wake-up call. The poor No-Fault clients are really being screwed by these doctors and their minimal exams. Perhaps our Attorney General should launch a full investigation into the whole IME concept.
Im responding to an OSC where the defendant is asking for a new IME because Dr. Israel is the IME doctor. Anyone face this issue or have any case law ? Thanks
Some research revealed defendants most likely CANNOT compel a 2nd IME because their original doctor was disciplined. Here, the fact that the defendant’s examining physician was arrested and temporarily surrendered his medical license subsequent to his examination of the plaintiff and the filing of the note of issue does not justify an additional examination by another physician. The defendant’s concern that the plaintiff may impeach the examining physician’s credibility with this information is not a sufficient basis to direct a second examination (see Schissler v. Brookdale Hosp. Ctr., 289 A.D.2d at 470, 735 N.Y.S.2d 412; Futersak v. Brinen, 265 A.D.2d 452, 697 N.Y.S.2d 89).
Giordano v Wei Xian Zhen, 103 AD3d 774, 775 [2d Dept 2013]
In earlier cases, the Appellate Division held directly on point “the fact that the examining physician was subjected to professional discipline subsequent to his examination of the infant plaintiff does not justify an additional examination by another physician, as the mere concern that the plaintiffs may impeach the examining physician’s credibility with this information is not a sufficient basis for a second examination (see, Cramer v Winnick, 162 Misc 2d 715). Futersak v Brinen, 265 AD2d 452 [2d Dept 1999] The First Department is in accord having cited the Futersak case holding “since there was no demonstration that unusual and unanticipated circumstances had developed after the filing of the note of issue (see, Futersak v. Brinen, 265 A.D.2d 452, 697 N.Y.S.2d 89). Rosado v Bronx Lebanon Hosp., 278 AD2d 9 [1st Dept 2000]
In another First Department case, the court properly refused to direct plaintiff to submit to a second physical examination by a doctor of defendant’s choosing, where there was no evidence that the original doctor was unqualified to render a full evaluation; a second examination was not justified by defendant’s dissatisfaction with its original doctor’s ability to report on the full range of injuries alleged by plaintiff. Strauss v. New York Ethical Culture Soc., 210 A.D.2d 134, 620 N.Y.S.2d 51 (1st Dep’t 1994)
In a 2013 case, the Appellate Division again held that a defendants’ examining physician having “temporarily surrendered his medical license subsequent to his examination of the plaintiff and the filing of the note of issue did not justify an additional examination by another physician. The defendants’ concern that the plaintiff may impeach the examining physician’s credibility with this information was not a sufficient basis to compel a second examination (see Schissler v. Brookdale Hosp. Ctr., 289 A.D.2d at 470, 735 N.Y.S.2d 412; Futersak v. Brinen, 265 A.D.2d 452, 697 N.Y.S.2d 89). Carrington v Truck-Rite Dist. Sys. Corp., 103 AD3d 606, 607 [2d Dept 2013]
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