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