August 4th, 2015

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

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?

Over 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.

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

October 9th, 2013

When Normal Isn’t Normal (License for Sale?)

This is the story of a doctor who decided that “normal” isn’t what he learned over decades of practice, but what an insurance carrier tells him is normal. If you earn your bread in the well of the courtroom, this may be something you hadn’t considered before.

What, exactly, is “normal?” When it comes to medicine and testing someone’s range of motion, there are standards. If you test 1,000 people who are in the sweet part of life — not an infant or octogenarian — you will come up with numbers.

Some people, of course, are flexible and test higher. Some are not — either naturally or due to injury — and test lower. But that doesn’t change what normal is, and that is an important metric because, if you want to evaluate an injury, you need a yardstick to measure by.

But what does a doctor do if the insurance carrier that hired him to do a medical legal exam tells him to use different numbers to define a normal range of motion? You may think the answer is obvious — that the doctor would firmly tell the insurance company to go shit in a hat and that his license to practice medicine isn’t for sale like that.

My experience last month at trial, however, found an altogether different answer. Now it’s a rare day for me to use one of my own transcripts, but I spent a good part of the summer investigating and ripping into phony testimony, quickie medical exams, and phony signatures. I’ve also covered insurance company directives on how to leave out of the reports things that may be beneficial to the plaintiff.

Today, I explore a completely different method of chicanery.

The case was a multiple vehicle collision and “Krystal Doe” had shoulder, neck and back injuries. The doctor I was examining had done a medical-legal exam for the defense. And he confessed, when confronted, with having used the insurance carrier “normals” instead of his own knowledge, training and experience.

The defense, ironically, was that the plaintiff was exaggerating. There was exaggeration for sure, but it seemed to be coming from the medical expert that the defense had hired.

In order to see if this is a worthwhile course to pursue in other cases, of course, you need to first find a bunch of reports that the doctor has authored in other cases. Pre-trial investigation into the expert, with calls/solicitations to other practitioners in your area, is required, unless your firm is huge. If you have a local listserv, then sharing info on expert docs is a great use of it. Or, if there is a company around that sends representatives to attend these exams as witnesses (such as the ones I used for this investigation), they may be able to help locate reports.

First, the set-up to lock the doctor into his position about the importance of normal (I’ve yanked the names out and cleaned up the text):

Q: I think you testified that you wanted to find out what the patient has and then compare that to whats normal, right?

A: Yes.

Q: Because loss of range of motion of a limb, it’s a relative thing. It’s all relative to what’s normal, right?

A: Yes.

Q: And normal would be, unless you’re elderly or a small child I guess, normal would be the same for everybody, right? Normal is a standard?

A: No. No. Well, it is a standard, but it’s not the same for everyone.

Q: Would it be the same for a 25-year old and a 35-year old, people who are right in the sweet spot of life, so to speak?

A: Yes.

And with that, you can now first establish what his opinion is of “normal” for this individual that happens to be your client:

Q: What is cervical extension?

A: Putting your head back.

Q: Looking up at the ceiling, like that?

A: Yes.

Q: And what’s normal?

A: Thirty-five degrees.

Q: And what was it for Krystal Doe in this matter?

A: Twenty.

Q: So the difference between 20 and 35 degrees, that would be her loss, right?

A: If it’s valid.

Q: Now of course if normal was actually higher, then the injury would actually be more extreme. If it was, for example, 60 degrees, the difference between 20 and 60 is a lot more significant than between 20 and 35, right?

A: Yes.

Then return to reinforce the concept that “normal” doesn’t really change:

Q: And you as a physician, who does these medical-legal exams, you always use the same range of motion for all of the people who you’re examining. Again, assuming they’re within the sweet spot of life, you know, in their 20’s and 30’s, right?

A: There are standards.

Q: And one of the standards is that — you’re telling the members of the jury — is that 35 degrees is normal; is that right?

A: It’s one of the accepted norms, yes.

Q. Now we’re talking about range of motion of the cervical spine, otherwise known as the neck, right?

A: Yes.

Q: And extension you say normal is 35 degrees, right?

A: Yes.

Q: And you did your examination of this claimant, Krystal Doe, on March 5, 2010?

A: Yes.

Q: Okay. I assume that there hasn’t been a difference in what normal is from 2010 to 2012?

A: I assume that.

Then confront with his “opinion” in another case that he did a medical-legal exam for:

Q: Did you examine a patient known as Thomas Roe, on May 21, 2012?

A: I have no recollection.

[Hand him report]

Q: Was that your opinion, when you examined Thomas Roe, that normal was 60 degrees?

A: Yes.

Q: And it’s different for Krystal Doe, correct?

A: Yes.

Q: And Thomas Roe, he was only 34 years old at the time, and Krystal Doe, she was 26 years old at the time, correct?

A: I don’t know that offhand.

Q: Please feel free to … [gestures to report].

A: He was 34.

Now it has often been said that lawyers shouldn’t ask questions at trial that they don’t know the answer to. But that isn’t really true. In this case, the expert was dead in the water. (He was actually dead in the water before we started; he just didn’t know it yet. Now he does.)

So it’s OK to proceed when you don’t know what the answer is, because there isn’t any answer that can help him. So off we go looking for the excuse for why he is exaggerating the loss of range of motion by using different “normals”:

Q: So there should be no difference in the normal range of motion for an individual who’s 26 and another one who’s 34?

A: Actually, that’s not true. This examination was done for a company that uses a different standard for range of motion testing.

Q: Don’t you use your own opinions as to what normal range of motion is?

A: I do, but if I’m employed by them to do an examination, I have to use their standards.

Q: So you then will take a standard that you know isn’t accurate, and use it in a medical-legal context?

A: No.

Q: Is that your testimony?

A: No. That’s not my testimony. At the end of my report, all of these reports, I state clearly that the range of motion testing is based on the American Academy of Orthopedic Surgeon’s standards, but there are differences with body habitus, with age, with activities. I state that clearly, so it’s a very subjective exam, and the 60 degrees here conforms to what this carrier says is normal. That’s not what I think is normal.

Q: And you used it anyway?

A: I did.

Ouch. The insurance carrier is paying for the exam, so he uses the carrier’s definition of normal. The only thing to do now, is bang on the drum a bit so the jury understand what has just happened, and move on to other body parts that might also have differing “normal” ranges of motion:

Q: You examined the person the way it is that you were told to examine the person, not the way your medical experience told you to examine the person?

A: No. They didn’t tell me to examine the patient any differently. They told me what their norms were.

Q: By the way, for shoulder abduction, that’s where you bring the arm up and point up at the sky?

A: Right.

Q: For Thomas Roe, it was your opinion that normal abduction was 180 degrees?

A: No. The norm, yes; 180.

Q: And was it your opinion that for Krystal Roe it was 160 degrees, there was a difference?

A: Yes.

Q: And when you examined her, you found that she only had 80 degrees, right?

A: Right.

Q: And the difference between 80 and 160, is not as much as the difference between 80 and 180, right?

A: Right.

Q: And this diminished your findings with respect to Krystal Roe in examining her range of motion and forming your opinion, didn’t it?

A: It diminished my findings?

Q: It diminished it because your normal was different, it was only 160 instead of 180?

A: I think that is the norm, 160.

Q: Was it your opinion in examining Thomas Roe that it was 180?

A: That’s what this carrier used as their normal.

So, the long and short of it is, do the ground work before trial by obtaining other reports that the defense medical examiner has done, and you may be surprised that “normal” may be a fluctuating concept based upon what the insurance carrier tells the doctor is normal in order to minimize the actual loss of the claimant.

How such doctors sleep at night is beyond me, though I suppose his $7,000 fee probably helped.