December 13th, 2021

The “Independent” Medical Exam is Dead

This post is a two-parter and I struggle to figure out which part is more important. First, an appellate court in New York has finally stuck a fork in the “independent” medical exam. It is dead and gone.

Second, the same court in the same decision has stated that the human body is not capable of spoliation. I’ll deal with that quirky part first (though each is worthy of a separate post).

It’s been a recent trend by some defense lawyers to claim that a personal injury plaintiff could not get surgery to fix their condition. Unless it was an emergency. They had to first give defendants a chance to have the person examined before the plaintiff’s body was changed, or in the words of the law, “spoliated.” And if there is spoliation, then sanctions can be imposed.

And some lower courts bought that argument.

But in Gilliam v.UNI Holdings, a unanimous panel of the Appellate Division (First Department) said no way, you can’t give spoliation sanctions for people getting their bodies fixed after the defendants broke them:

We now reverse and hold that the condition of one’s body is not the type of evidence that is subject to a spoliation analysis. And, to the extent that these lower court decisions hold that spoliation analysis encompasses the condition of one’s body, they should not be followed… To so hold would improperly subject a plaintiff’s health condition to an unsuitable legal analysis. Instead, a failure to appear for an ME, regardless of whether the failure to appear is preceded by medical treatment for the condition at issue, should be analyzed the same as other failures to comply with court-ordered discovery.

Did you see that “ME” in there? That stands for medical exam. I’ll get to that part in a minute.

But first, as rationale for why you can’t “spoliate” the human body the way you could with the destruction of documents, devices, electronic evidence and a wide variety of equipment ranging from treadmills to chairs, the court held:

The state of one’s body is fundamentally different from inanimate evidence, and medical treatment, including surgery, is entirely distinct from the destruction of documents or tangible evidence which spoliation sanctions attempt to ameliorate. To find that a person has an “obligation,” to preserve his or her body in an injured state so that a defendant may conduct an ME, is antithetical to our belief in personal liberty and control over our own bodies.

People should not be forced into the “absurd” situation of being forced to forego surgery to heal themselves because a lawsuit is pending, says the court:

Plaintiffs must be free to determine when to undergo medical treatments based on personal factors such as doctor’s advice and their specific pain and discomfort level. It would be absurd for courts to require a plaintiff to forego surgery (or other medical treatment) for an injury so as not to potentially compromise a lawsuit against the party(s) alleged to have caused the injury.

Now on to that part about the “ME.” For as long as I have practiced law — and I am coming up on 36 years since I was admitted to the bar — defense lawyers and the courts have insisted on using the phrase “independent” medical exams (IME) to refer to exams that defendants were entitled to in order to assess the damage to the human body or mind after a collision or other mishap. When you place your body in issue in a lawsuit, after all, you waive any confidentiality for those particular body parts and the defendants are entitled to have a doctor examine those parts.

But it was never independent. We all knew this. These were not, after all, doctors hired by the courts. They were hired by the defendants as part of litigation.

Back in 2013 I did a series of posts on Quickie Medical Exams that last, often, no more than a few minutes at most so that a doctor could testify that the injured plaintiff wasn’t really hurt, or had fully recovered. It was, and often continues in my opinion to be, a flat out scam and form of insurance fraud (one that favors the insurance company).

Routinely over the years I have struck the word “independent” from the forms for routine discovery orders, insisting they be called Defense Medical Exams or Medical-Legal Exams. I first wrote about this in 2009 (2009!) when I asked Is the “Independent” Medical Exam Dead?

I wrote it because of a dissenting opinion from this same court, the First Department, where Justice McKeon asked a question that former Chief Judge Lippman had already asked (also in dissent):

…the “independent” prong of the term, has long been winked at by the bench and bar. Few consider the physical examination conducted for purposes of litigation as independent; indeed, one court has described it as part of the “adversarial process” (Bazakos v Lewis, rev’d on other grounds) with Chief Judge Lippman forthrightly observing that “[t]hese 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 (id. at 6 [Lippman, Ch. J., dissenting).

At that time I prognosticated:

So let me be the first to proclaim that the “independent” medical exam is dead. Sure, it may still take a few years to see it buried altogether, but make no mistake about it, it is on an irreversible course to the trash heap of litigation history.

And now it is dead. For reals. There is no longer a question mark on the issue, at least in the First Department (New York and Bronx counties). It seems unlikely that any other appellate department would continue to claim such exams are “independent.” The dissents of Lippman and McKeon have won the day. The First Department now says:

It should also be noted that defendant has mischaracterized the nature and role of “independent” MEs in personal injury litigation, presumably to cast plaintiff’s surgery as an egregious and sanctionable act. Such examinations “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. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all” (Bazakos v Lewis, 12 NY3d 631, 638 [2009] [Lipman, Ch. J., dissenting]). Viewed in this context, an ME is simply one piece of evidence in a personal injury action.

So the Gilliam case addresses two significant issues. The first is somewhat limited and a little bit quirky — the issue of spoliation of the human body.

But the second is significant to all personal injury actions where the plaintiffs are examined. No more should a court refer to these exams — either in decisions or in front of jurors — as independent.

They aren’t. And they never were. And we should no longer be asking if the “independent” medical exam is dead. It is. Good riddance.

March 19th, 2019

Appellate Court: Notes of “IME” “Watchdog” are Privileged

The fact that I used quotes on two different words/acronyms is, to be fair, a lousy way to start. But this New York appellate decision yesterday is important in any personal injury litigation because it goes to this essential question for plaintiffs’ lawyers: Would you allow your client to have an unrecorded deposition and physical exam with an agent of the defendant?

Regular readers know I’ve written often about medical-legal exams — those exams that defendants are entitled to when claimants place their medical condition at issue in a lawsuit. The courts errantly refer to these as Independent Medical Exams (IME), though they are far from independent. (See: Is the “Independent” Medical Exam Dead?, and Dear Judge Smith — You gotta be kidding me.)

There are a number of frequent flyer doctors that will do 1,000 or more of these per year for insurance companies, with predictable results. They were the source of a series I did in 2013, with many exams lasting little more than a few minutes at best. (See: Premature Evaluations – The Evidence on Quickie Medical-Legal Exams)

And because these exams are anything but independent, and the doctors so heavily dependent on insurance company money, it’s the custom of plaintiffs’ lawyers to send along an observer, a chaperone, a watchdog, of some kind.

The problem of skewed exams became so great that a cottage industry was born with a company, IME Watchdog, being born for the express purpose of sending along an observer to take notes.

As a puppy lawyer I used to attend these with some frequency since I was not going to try the case. If the doctor lied about something obvious — claiming the exam lasted longer than it did, for example, or falsely claiming that the client made some comment about his condition or how a collision occurred — the observer would be able to take the stand in rebuttal and dispute what the doctor claimed happened in that exam room. The person being examined is, after all, quite preoccupied by being probed and tested and can’t sit there and take notes.

With that way-too-long introduction, we turn to the decision of the First Department yesterday in a matter of first impression: Can defense counsel use discovery to gain access to the notes take by the observers’ and take their depositions. Lower courts had mixed answers to that discoverability issue.

But that issue was laid to rest yesterday in a unanimous appellate decision in Markel v. Pure Power Boot Camp. And that answer is emphatically no.

The court first observed that “No special or unusual circumstances need be shown in order for the IME observer to be present during the examination.”

While the “information contained in the IME observer’s notes and other materials are not protected by either the attorney-client or work product privileges” there is still the qualified or conditional privilege of material prepared for litigation under CPLR 3101(d)(2).

The observer is there as an agent of plaintiff’s counsel in order to assist in the preparation of the case for trial, and that includes cross-examination of the hired guns that insurance companies routinely use.

The only way of circumventing this is by showing a “substantial need” for the discovery and that without “undue hardship” the requesting party is unable to obtain the substantial equivalent by other means.

Except that defendants can’t show that because they have doctors in the rooms taking their own notes.

A final note: The court stressed that, “An important consideration in the Court’s analysis is plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case.”

The representative, of course, is not hired to be there for the affirmative case, but to be available for rebuttal in case the doctor makes up some cock-and-bull story about what happened or what the doctor claimed that the plaintiff.

This is all the more important since the courts barred people from actually recording the exam, which would have done a helluva lot more for keeping the doctors honest that allowing observers.

And to those judges that may be reading this, please stop using the phrase Independent Medical Exam. You’ve got a legitimate choice between Defense Medical Exam or simply medical-legal exam. And former Chief justice Jonathan Lippmann agrees with me. In Bazakos v. Lewis he wrote in a dissent:

“[t]hese 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.

January 28th, 2016

Doctor Tries To Take Down Lawyer’s Blog Post By Filing Grievance – updated x2

Michigan attorney Steven Gursten

Wow. Defense-medical exams and a defamation claim against a law blogger! Two of my favorite topics wrapped up in one ugly Michigan incident now ongoing.

Now you folks know I have a thing or two to say about doctors that do a lot of defense medical-legal exams. And you know I have a thing or two to say about BS claims of defamation, having been on the receiving end of a couple of moronic lawsuits.

Now comes before us today one Dr. Rosalind Griffin, a Michigan psychiatrist, with a different tactic: Filing a grievance against lawyer Steven Gursten for blogging about a medical-legal exam that she did on one of his clients.

Gursten was so ticked off at Dr. Griffin, that he wrote about her. Like me, he thinks that many of the doctors that make these exams a staple of their practices are doing hatchet jobs on the injured plaintiffs in order to benefit the insurance companies.

(For a comic view of how one lawyer sees it, you can view this cartoon.)

The short version of today’s story is that Gursten’s client was hit by two trucks, and he asserts that the client suffered a traumatic brain injury, broken back, and other significant injuries. Dr. Griffen then did the defense medical exam (DME) — sometimes improperly called an independent medical exam (IME) — and issued a report.

Gursten then presented evidence and asked readers to draw their own conclusions as to whether Dr. Griffen committed perjury. In fact, by the title of his posting, you can see that this invitation to readers was his explicit intention:

Heading: IME abuse? Read the transcript of Dr. Rosalind Griffin in a terrible truck accident case and decide for yourself

Subheading: How many thousands of innocent and seriously hurt people lose everything because of so-called “independent medical exams,” such as this example by Michigan psychiatrist Dr. Rosalind Griffin?

Dr. Rosalind Griffen

He presented evidence that Dr. Griffen — who he said is “a rather notorious IME doctor here in Michigan” — was less than candid in her assessment.

Gursten asserts that this evidence disproves the doctor’s claim that the client said during the exam that his condition was improving, that the client had minor medical conditions, and despite “a closed-head injury, traumatic brain injury, abnormal memory and concentration, PTSD and a badly fractured and collapsed T12 vertebral body, as well as fractures to his mouth, shoulder and knee” that the client’s chronic pain actually came from a 30-year-old whiplash that had been asymptomatic.

This presentation of evidence, and request that readers make their own determination as to whether Dr. Griffen committed perjury, occurred Nov. 13, 2014.

Thirteen months later, Dr. Griffen filed a grievance, claiming defamation, and asking that the Committee require the lawyer to:

“delete his outrageous posting”; and
“[R]emove the link to Google results for my name.” [I didn’t make that up, I swear. — ET]
Punish and sanction him for putting her testimony and her conduct under oath on the internet for people to read.

Gursten wasn’t cowed by the complaint and proceeded to put it up online this week in a new posting with this heading and subheading:

Heading: Sticks and stones and…attorney disbarment? Will the First Amendment lose out when IME doctor files grievance to conceal her testimony in injury case from the public?

Subheading: IME doctor files grievance to suppress blog post and punish attorney for disclosing her conduct

Over the course of a very extensive follow-up posting this week, he provided many examples of differences between what the doctor claimed, and what he said actually happened. This is a sample, with much more at the original posting:

What Dr. Griffin claims James Fairley said.	What James Fairley actually said.
“[A]ccording to his own statement he feels less depressed and is making progress.” (IME Report, Page 8)	“Q. What’s a good day for you? A. I don’t know. I haven’t had one lately. … I just have a profound sadness … Q. Do you think you’re depressed, sir? A. I do. … Q. Have you been tearful? A. Oh, yeah. I cry at the drop of a hat sometimes.” (Fairley Dep., Page 58 (lines 1-2, 7), Page 61 (lines 13-14), Page 62 (lines 4-5))

In the text of the grievance, Dr. Griffen complains thusly about the original blog post:

Notably, it is the first item returned when someone uses the Google search engine on my name, thereby ensuring that it will be noted and read by individuals researching me or selecting a psychiatrist who will best meet the needs of the patient.

The problem, of course, is that Gursten merely provided the documents and video testimony, and pointed to various sections of them, while offering his opinions. He did what lawyers do: He presented evidence and asked the jury (his readers) to decide.

The doctor’s complaints that calling her “notorious,” or her exam a “hatchet job,” would be merely opinion. And opinion is not actionable under the First Amendment. It isn’t even a close call.

She also tries to make the complaint, unconvincingly I might add, that writing about her exam and testimony violates Rule 8.4 of Michigan’s rules of professional conduct which state that it is attorney misconduct to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

Since there is nothing dishonest or fraudulent about providing evidence and asking a series of questions about where that evidence leads, I don’t see how she can possibly prevail. Nor is a public discussion of a very serious issue prejudicial to the administration of justice. In fact, a public discussion is beneficial to the administration of justice. I do it here all the time.

Why would Dr. Griffen — who happens to be a member of the very grievance committee to which she is complaining — file this?

Leaving aside the obvious possibility that she may have friends on the committee, the other possibility is that she tried mightily to find an attorney to bring a lawsuit, and that everyone told her “Are you shittin’ me?” though they may have been a tad more blunt. Then a year went by, the statute of limitations expired in Michigan, and she made this complaint feeling she had to do something.

And so she did. And now people out of state, who had never heard of her, are writing about her. Well played, doctor, well played.

(Pro tip: If you need to file a dopey defamation case, you might try Jonathan Sullivan at Ruskin Moscou Faltischek in New York. He’s the guy that brought Dr. Michael Katz’s pointless and doltish suit against me regarding an “IME” and testimony that Katz did. Who knows, maybe he wants to do it again?)

Addendum: More at Public Citizen, a small excerpt below. At the link are also case citations, and a thorough exposition on the chilling effect that permitting such grievances has on free speech.

Griffin’s complaint amounts to a lightweight defamation claim (lightweight because most of the quoted words are either not actually about Griffin or are opinion rather than facts, because Griffin does not spell out any other allegedly defamatory words as Michigan law would require, and because she says nothing about knowledge of falsity or reckless disregard of probable falsity). It is therefore not surprising that Griffin did not file a defamation claim within the one-year statute of limitations. Instead, six days after the statute expired, she chose to file this bare-bones grievance complaint, hoping that paid grievance staff will conduct an investigation for her, and force Gursten to spend his time and money responding to questions from public officials about his opinions about whether and how justice is afforded to accident victims and specifically how Griffin has or has not testified unfairly or unjustly.

In discussing the Michigan’s Grievance Commission, in highly critical terms for allowing this to go forward and requiring a response from Gursten, Public Citizen’s Paul Alan Levy writes:

The Commission staff might well be hoping to exact an apology as Gursten’s price for peace, but at least so far, Gursten is not only not caving in to Griffin’s pressure, but he has called Griffin’s bluff and raised the ante.

Addendum #2: Scott Greenfield weighs in on Rosalind Griffin using a disciplinary complaint because an actual defamation case would fail, and the completely expected reaction (from anyone in the least bit savvy about the internets):

But if the lawyer disciplinary process seems like easy pickin’s to silence blawgers, the flip side is that we’re not particularly inclined to run scared, and we have this tendency not to take kindly to being extorted through the use of the grievance procedure to shut us up.

Has Dr. Rosalind Griffin ever heard of Barbra Streisand? If she thought she had something to twist her face into a frown before, she’s really gonna hate what happens when her effort to use the disciplinary procedure to silence Gursten not only fails, but backfires big time.

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.