Who do I see about a mulligan on my choice of experts?
In golf, a mulligan is a do-over. You whack the ball deep into the woods, you yelp “Mulligan!” and tee up a new one. When you’re out with your buddies no one really cares. Unless there’s money on the line. Then it matters.
And so we have the defendants now screaming for mulligans when it comes to so-called “independent” medical exams performed by Dr. Robert Israel. If the name doesn’t ring a bell, I wrote about him on June 3rd after he’d been placed on probation for three years for professional misconduct due to medical-legal exams he conducted for defendants. Yeah, that Dr. Israel.
He agreed, in accordance with his sanction, 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.
Given that he was doing 1,500 orthopedic exams per year for medical-legal purposes, that was a pretty big deal for thousands of cases.
Defendants were, as you might guess, a wee bit concerned that he’d be drawn and quartered by plaintiffs’ attorneys if he took the stand and that whatever credibility he had before the sanction would vanish into the vapors.
So they’ve been making motions, claiming that if Dr. Israel testified on any of his old cases, it would violate the consent order that he’d agreed to.
This was expected when I made my original post — and I said the tactic would fail — writing:
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.
The comments on the post lit up with discussion on the consent order and whether it would preclude Dr. Israel from testifying. No way, said I.
And now the first verdicts are in, in three decisions from Justice Kenneth P. Sherman sitting in Brooklyn: Moran v. EMR Mechanical, Diaz-Rivera v. Akindele and Haynes v. Hossain.
The law does sometimes allow for mulligans, of course, in certain situations. Litigants on both sides, for example, often ask for retrials when they are on the losing side claiming some unfairly prejudicial conduct (and usually lose).
But in the first of these three decisions, Moran (decided August 5th), there were problems with the defendants’ application for a second defense medical exam. Justice Sherman wrote that that there was no claim that the plaintiff’s condition had changed (which would obviously warrant a second exam), nor any claim Dr. Israel wasn’t a qualified orthopedist, nor any claim that Dr. Israel was unavailable to testify due to death or disability.
The defendants instead tried to claim that the consent order rendered him unavailable because he would be engaging in “any practice as an Independent Medical Examiner.” Is that good enough for a do-over?
No way, said Justice Sherman. The consent order affects future exams, not the past ones. He wrote: “As those pre-consent order IMEs and reports were not rendered retroactively void by the consent order, there is no reason why Dr. Israel could not testify concerning those reports.”
And, mimicking my comments about Dr. Israel getting shredded on cross-exam, Justice Sherman wrote:
The Court understands that Dr. Israel might be subject to a somewhat intense and difficult cross-examination. However, such an attack on this expert’s credibility, like any other attack on any witness’s credibility, only goes to the weight of that testimony, not it’s admissibility.
Justice Sherman thereafter reviewed appellate cases where other examining doctors had faced license issues, and was unable to find any support for the defense proposition that mere fear of vigorous cross-exam was enough to warrant a mulligan on the medical-legal exam.
The second decision, Diaz-Rivera (dated August 14th), cites to Moran and once again rejects the defendant’s request for a do-over.
The third decision, in Haynes, adds in the additional wrinkle of a letter from the Department of Health that specifically rejects the defense contentions that Dr. Israel would be violating the consent order if he testified about his past cases. (That letter is a July 2nd update to my original post.) The pertinent part reads:
“If [Dr.Israel], 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 [June 7, 2013], we would not consider that a reportable violation.”
Now let’s see what happens to Dr. Michael Katz, recently busted on the witness stand for lying about the defense medical exam he did, and perhaps, a few of the other doctors who have for years been doing quickie medical exams and escaped Department of Health oversight.
Do you hear that cheering sound? It comes from gazillions of plaintiff’s attorneys and their clients who have been burned by insurance companies hiring Dr. Israel and his ilk in the past.
There won’t be any mulligans here. Karma’s a bitch.
Will any of the defendants/insurance companies who hired him before the consent order be able to sue him when they lose or settle because of it? I would imagine he is going to get hit from both sides, by plaintiffs who lost cases due to his shady testimony and by the defendants who are going to lose cases and/or get sued again by some of those former plaintiffs.
Will any of the defendants/insurance companies who hired him before the consent order be able to sue him when they lose or settle because of it?
Good question. But proving damages might be difficult. Who says the result would have been different?
Ah, good point. If they settle there’s no way to prove they wouldn’t have anyway – they’d probably have to lose the lawsuit and hope the judge or jury specifically point out Dr. Israel’s testimony as a deciding factor. Probably better in the long run to settle and disassociate themselves from him as much as possible.
I had a few cases where Allstate was the carrier and used him. I really hope Allstate pays through the nose for using this guy. Karma is indeed a bitch.
These rulings are also a vindication for insurance defense lawyers who refuse to use “independent” medical experts who twist their opinions to curry favor with the insurance companies. Although I now represent plaintiffs, I spent 25 years as a defense lawyer, and I never used an obvious hack like Dr. Israel, sometimes sparking a real battle with my adjuster.
I live in Toronto Canada and was the victim in one of these dishonest medically arranged by a company called Sibley and associates . They are a broker of sorts and organize these so called IME exams. It’s no different here. Dishonesty and insurance lobbyists lobbying dishonest politicians with campaign promises and cash. Fortunately the dishonest doctor that conducted my medical ” no longer works ” for my employer or Sibley and associates. Unfortunately that doesn’t stop Sibley and associates form ” providing highly defensible IME exams” or their highly paid shill for lying on a medical report for the sole purpose of breaching fiduciary trust. Mr Turkewitz you are providing a great service . I wish the lawyers in Canada were as motivated as you. I would have dealt with these devils appropriately. Best regards to you sir and your invaluable information.
Unfortunately it’s not just this guy, this dishonest man got caught. I assume its one of the risks the insurance company will try to manage. It’s important to remember that these individuals are supported by the AMA and endorsed as competent and ethical professionals. Lets attack the root of the problem and lobby the government to stop this dishonesty, period. Oh and I do expect that Allstate will not only pay through the nose but that all of this is publicized further and harms the reputation of any company that uses paid witnesses of this sort. I would also like to see racketeering charges against this man and Allstate, etc..Karma is truly a bitching,,,
There is no question that many frequent flyer experts are usually get the work that they do because they are biased towards plaintiff, defendants, or as is more often the case, who is paying them. That is why it is so key for plaintiffs to get the treating doctors on board or, in a malpractice case, to get the subsequent treating doctor. The latter is a tougher play because they usually want to stay out of it but when you can put it together, you are pushing the ball a long way towards a plaintiff’s verdict.
I have also had the misfortune of dealing with sibley and associates on an IME. They are truly a deceptive and dishonest company employing a dishonest doctor to write slanderous and libel report to attack the credibility of both the patient and their doctor. It’s important that all of us who represent the injured and disabled against multi million dollar insurance companies all work together to expose this grand fraud and sham. Eric, are you with me?
Eric, are you with me?
I think that anyone that calls another “deceptive and dishonest” should have the guts to sign his or her name. The internet is filled with people hurling insults from the protective cover of anonymity.
So the answer is no, I am not with you. I find such comments to be without any value whatsoever.
@Warren –
Warren, as a lawyer and friend you must understand that most lawyers cannot fight a sham of this magnitude because it is funded by insurance companies, public and private companies. The little guy doesn’t have the time to do this but the insurance companies have project teams, hundreds of paid doctors and lawyers to contradict what your doctor says all stupid and ludicrous as their dishonest reports may be and are. In Canada these IME are also endorsed the the college of physicians and surgeons. The Canadian government has no position on this and these rogue doctors and companies carry on saving hundreds of millions of dollars while the plastics are forced to go on welfare because companies like sibley and associates, etc stalled the entire process by endorsing fraud reports. The doctors also know that if they side with the patient, there is no six figure salary and very little future work.
@Eric Turkewitz –
My name is warren and i have “lots of guts”.