August 5th, 2013

Doctor Testifies That Six Different Signatures Are All His

Dr. Joseph Tuvia

Last Monday, I wrote up the story of Dr. Joseph Tuvia, a local radiologist who seems to have a propensity for vastly differing signatures made under penalty of perjury. And when I say vastly differing, I mean no person in their right mind would think they all belong to him. And I also mean a graphologist that had examined them is ready to swear under oath they didn’t all come from the same hand.

Then, as fate would have it, he took the witness stand Thursday in an unrelated matter in the Bronx. When you review 1,000 films a year for litigation, it’s inevitable you’re going to be back on the stand.

The lawyer that was going to cross-examine him had seen my posting, as well as a Village Voice piece in its Runnin’ Scared blog that contained this:

Runnin’ Scared spoke to Jeffrey Levine, the lawyer who initially noticed the signatures when representing a client in an arbitration with Allstate Insurance. Levine hired a graphologist to test the authenticity of the signatures.

The graphologist confirmed Levine’s suspicion: The papers were signed by different people. “Do you really need an expert to see the difference?” asks Levine.

The lawyer in Thursday’s case, Ken Ready, brought the articles to court. He put the Village Voice piece prominently on his table so that Dr. Tuvia could see it.

Scott Greenfield explains why those signatures under of perjury are so important to the administration of justice, in posting about civil law meeting the criminal law.

What, exactly, would Dr. Tuvia do when confronted with them on the witness stand? He certainly knew about the articles, as both the Voice and I left messages at his office seeking comment.

If he conceded that they weren’t his signatures, he risked prosecution for perjury, or conspiracy with others to commit perjury. If he said they were his signatures, he risked prosecution for new claims of perjury.

The criminal defense attorneys that read this blog would likely have all said the same thing: Stay the hell off the witness stand!!!

But there he was on the witness stand. And this is what happened:

First up, were the issues of a CT scan and an MRI. And he came to court, on behalf of the defendant, to testify without the films. You read that right, he got on the witness stand to testify about films he didn’t have with him, that weren’t in evidence, and with a report that had a signature that differed from his signatures on other reports.

Now if you’re plaintiff’s counsel, you have two choices: First, you object to his testifying about things not in evidence. A law student could guess that choice. Alternatively you let him testify and make a fool of himself which may help you in the long run as it exposes the frailty of the defense. Plaintiff’s counsel in this case, Ken Ready, elected to let Dr. Tuvia play the fool.

The central issues were whether there was a disc herniation, and if it existed, whether it was caused by the collision, and whether the surgery was necessitated by the collision. And he did this without the films.

Next up, and the real reason you are still reading this, what did Dr. Tuvia say about all the differing signatures? Answer: He claimed they were all his. Specifically:

He testified that the top signature you see to the left, marked for identification at trial as Exhibit 15A, was his.

He testified that the second signature to the left, marked for identification at trial as Exhibit 15B, was his.

He testified that the third signature to the left, marked for identification at trial as Exhibit 15C, was his. Since there were two signatures there, he had him sign to see which was his, and the “Joseph” that you see on the right side of that third image was the result, looking like neither of the others.

He testified that the fourth signature to the left, marked for identification at trial as Exhibit 15D, was his.

And yes, he testified that this fifth and bottom signature to the left, marked for identification at trial as Exhibit 15E, was also his.

Five differing signatures were marked for identification. And he was questioned under oath about all of them them. Then he added a sixth, “Joseph,” which looks nothing like the other five.

Mr. Ready explained to me what transpired:

He stated under oath that all 5 signatures – one at a time – were his. One of the signatures was off because – as he explained – he was tired. I had him write his name next to his signature on Exhibit 15c because there were two signatures on the page. He testified that there may have been a time or two that someone else signed his name but that it was quickly corrected by him signing later.

An interesting note about the documents is that all five are addressed to D&D Associates, one of the “facilitators” (brokers) for the insurance business. One of the big questions, of course, is that if the differing signatures are not that of Dr. Tuvia, then who wrote them? Is it D&D staff? Is this going on with other “frequent flyer” examiners/testifiers that are part of the insurance industry medical mills?

I raise that issue because that is what the New York Times found in a 2009 exposé regarding Workers’ Compensation exams,writing that “Reports were sometimes altered by brokers…”

And if not D&D, and if not Dr. Tuvia, then who is signing these reports under penalty of perjury for Dr. Tuvia?

Unfortunately, Justice Mark Friedlander, who is hearing the case, didn’t allow them into evidence. They were, as we lawyers like to say, collateral to the case the jury was hearing.

But that doesn’t mean the District Attorney might not be interested from the perjury and conspiracy angles. And that doesn’t mean that Department of Financial Services Superintendent Benjamin M. Lawsky might not be interested from the insurance fraud angle. And that doesn’t mean the Office of Professional Medical Conduct might not be interested from the licensing angle.

This presumes, of course, that this posting doesn’t stay hidden in my teensy corner of the cyber world. Hopefully, if the prosecutors ever get an investigation up and running, they will see that this is just one small issue of a much bigger problem regarding insurance company exams.

I hadn’t expected, frankly, to be continuing this series on quickie medical-legal exams as long as I have. But now that I’ve started, stories keep rolling in about, what looks to me, like clear shenanigans that just so happen to have profound effects on people’s lives. And they are rolling in because we have a very serious problem here in New York.

July 30th, 2013

To Tell the Truth: Which Doctor’s Signature is the Real One?

Dr. Joseph Tuvia

I thought I was done, for the time being, ripping scabs off the lacerations and lesions of New York’s medical-legal evaluation industry. Boy was I wrong.

Over the transom this week sails medical reports allegedly signed under oath by one Joseph Tuvia, M.D., who’s been doing medical-legal reviews of radiology films since about 1996. He was reviewing, back then, a thousand films a year, and was doing 95% of it for the defense.

As you might guess from the title of this post, the questions today revolve again around potential perjury, not from the witness stand but by signing medical-legal reports under penalty of perjury. Or, perhaps, by having others sign his name.

Each radiological study these kinds of experts interpret, you see, gets memorialized in a report. And each report is signed under penalty of perjury.

TuviaJoseph-jane 2 But which of these four signatures is the real Dr. Tuvia? Do any of them look even remotely the same as the other?

This looks, to my eye, like some sick version of the old To Tell the Truth, where celebrities asked questions to a panel of three contestants and only one person was allowed to be truthful. It ran for a remarkable 25 years. But those folks were doing it for the laughs, and the imposters certainly weren’t doing it under penalty of perjury.

The declarations you see here are signed pursuant to CPLR 2106, which allows doctors to sign unsworn affirmations as opposed to affidavits. Doctors, I guess, were deemed trustworthy enough to do this. And most of them are.

But who, in this case, is actually signing under penalty of perjury? Do any of those signatures belong to Dr. Tuvia? Do they belong to someone on the support staff? Do they belong to a broker funneling business to the medical practice on behalf of the insurance company?

Is anyone changing the report after it’s dictated? Would Dr. Tuvia even know?

Is anyone laughing about this?

I attempted to reach Dr. Tuvia but was unsuccessful. I am open to publishing a response if he calls back.

I’ve bitched and moaned a lot about the sorry state of New York’s current medical-legal “system,” where brokers pay doctors chump change to do evaluations on a big volume basis, and the results are quickie 5-minute exams. The doctor gets paid and moves on to the next one. The claimants that might have their economic futures affected are stunned at what happened, their legal rights potentially altered forever.

Questions arise, however, not only with those that do the exams but those that are unseen by the claimant. These doctors simply review records and films and then happily testify about the “results.”

Apparently some are laughing at this show. It’s the insurance companies, and they get to laugh all the way to the bank as they limit their payouts. The defense doctors playing this game know who is paying the bill and want the repeat business that comes with a happy client. The insurance companies use the reports — claiming the orthopedic injury is degenerative, or pre-existing, or non-existing, or fully recovered – to coerce meager settlements.

The New York Times covered this several years ago in an exposé about phony Workers’ Compensation evaluations and what happens with the bogus results: “The examiners’ opinions can empower an insurer to slash benefits, withhold medical treatment or stall a case.”

Then the insurance companies use the same phony data to run to the Legislature and scream about all the insurance fraud. Is that a laugh riot or what?

Will the District Attorneys ever investigate? Will the Attorney General? Will the U.S. Attorney? How about the Insurance Frauds Bureau at the Department of Financial Services where Benjamin M. Lawsky is the Superintendent?? Or is it only individuals that get investigated while insurance companies get a free pass?

Yeah, I keep dreaming about this stuff, hoping someone in the media will wake up when they realize the scope of the issue, that someone will realize how many tens of millions or hundreds of millions are at stake, hoping that one day we will see a little more integrity in the system. Hoping that someone, somewhere, will pick up this drum and start banging on it.

Hello? Is this thing on? Is anyone out there listening? Does anyone give a damn?

And will the real Dr. Joseph Tuvia, please stand up?

(Hat tip on the documents to one of my brethren at the New York personal injury bar, Jeffrey Levine.)

Update: Three days after this post, Dr. Tuvia took the stand in an unrelated case and was confronted with the signatures:

Part 7: Doctor Testifies That Six Different Signatures Are All His (8/5/13)

July 23rd, 2013

Quickie Medical Exams: What Next?

So? Now what?

I started this series with the story of one doctor, Michael Katz, getting busted on the witness stand for lying about a defense medical exam that lasted less than two minutes. I followed up regarding the judge’s referrals for punishment, and then did an analysis of other exams Dr.Katz had done, timed by others, that averaged less than five minutes.

And having used him as an example, I then went on to present evidence that these premature evaluations are not an isolated problem. The average exam times for three other “frequent flyer” insurance doctors, from the data I found, all averaged under five minutes.

I think it’s fair to ask the question, how much insurance fraud is going on by the insurance companies? The more denials insurance companies can conjure, the more money they make. But remember, peoples’ economic lives may well be at stake for the Workers Compensation, No-Fault and personal injury cases that these exams are done for.

What next? I SAID, “WHAT NEXT!”

Yeah, I’m yelling, and why the hell shouldn’t I? There are thousands of exams being done each year, just by the four doctors that I briefly investigated. The scope of financial losses to the citizenry (and gains for the insurance companies) may be well up in the tens of millions or hundreds of millions a year when you extrapolate out across all the exams. Just in New York.

I’m just one guy banging away on a keyboard. I don’t have the resources for a proper investigation to tally the damage. I don’t have subpoena power. But others do. It isn’t enough for me to yell about problems, I should suggest solutions:

Like the District Attorneys, such as Queens District Attorney Richard A. Brown who already has the Michael Katz perjury file heading toward his office for potential prosecution. But why stop at perjury when the real issue may be insurance fraud?

And this holds true for Attorney General Eric Schneiderman as well. This matter isn’t, after all, limited to any one particular county.

And then there is U.S. Attorney’s Office, both Preet Bharara in the Southern District and Loretta A. Lynch in the Eastern District. Wire and mail fraud are often the basis for federal jurisdiction, and let’s face it, if there are problems in New York with these quickie exams there are problems elsewhere.

Do I have faith that these prosecutors will undertake a wide-ranging insurance fraud investigation simply because there is evidence of it, there are vast sums of money at stake, and that many thousands of already-injured consumers may be victimized a second time? I’m allowed to wish, aren’t I?

On a strictly court-wide level, one of the issues that came up in the trial with Michael Katz was the surreptitious video that captured him doing the one minute, 56-second exam. The judge thought it might not be proper to do so, and if done, that the video should have been exchanged. Plaintiff’s counsel thought otherwise. This is not the type of thing in which you will find a lot of direct-on-point appellate law.

But we shouldn’t even need appellate courts, since the answer I think should be clear, despite Justice Hart’s declaration of a mistrial in the Michael Katz matter.

First off, defendants are already free to video plaintiffs at their depositions or to hire investigators to video plaintiffs secretly. Everything we do in litigation is recorded somehow, because everything has the potential to be contentious.

Why would taking video of a doctor doing a medical-legal exam not be permitted? Is there any colorable reason to object, other than the fact that an insurance doctor won’t be able to say he did a 30 minute exam when it actually lasted four minutes? And that he won’t be able to claim certain tests were done if they weren’t done? Are we afraid of taking away the opportunity to commit a a fraud on the courts?

And why wouldn’t the video be protected as attorney work-product, the same as the notes that might be taken by a lawyer attending the exam with a client? Do plaintiffs get copies during the discovery process of the raw notes that the doctors take? Do we get the letters from the insurance companies and their lawyers to their doctors? No, we don’t, not in New York. Unless a doctor inadvertently leaves the letter in his file and gets caught with it later.

According to Chief Justice Jonathon Lippman, these exams are part of the adversarial process. Can you think of any other aspect of the process where one side or the other doesn’t have the right to record it? As CJ Lippman wrote in Bazakos v. Lewis in dissent:

It is beyond cavil that a statutory medical examination is an adversarial process. The examinee’s attendance is compelled by rule of law (see 22 NYCRR 202.17), and his or her engagement and interaction with the examining physician is nonconsensual. Indeed, because of the inherently adversarial nature of these types of examinations, this Court long ago recognized the examinee’s right to be examined in the presence of his or her attorney

Perhaps, in days gone by, bringing in a videographer, and setting up a camera with tripod would have seemed an intrusion that got in the way, and people figured having a representative there was enough. But as we can plainly see, these quickie exams appear to be rampant and the consequences can be devastating.

Technology advancements cannot be understated. Anyone can use an iPhone and be completely discreet. And with Google Glass now coming fast, video recording would be completely unobtrusive as the camera would be worn like eye glasses. There’s no logical reason to say no to recording.

One thing for CJ Lippman to consider, if someone was kind enough to forward this little posting to him, is amending 22 NYCRR 202.17 to make clear that a party is permitted to audio or video record the exam. Is there any benefit to leaving it ambiguous?

And while we wait for the modification, the lower courts can make it clear in Preliminary Conference form orders that this right exists. Again, there is no benefit to ambiguity.

What do we gain by having videos? Plenty. Sure, it’s still possible for frequent flyer doctors to fudge their findings, it’s just more difficult when a range of motion, for instance, is captured on camera. And it sure looks bad for a doctor if a report details no limitations on a range of motion but the video shows the range of motion was even tested.

There are these benefits:

Exams will generally be more thorough, and if not, the jury will know it clearly without having to depend on the word of a paralegal against the doctor’s word that the exam was a quickie;
Longer exams will likely lead to them being more consistent with the findings of actual, treating physicians;
If defense medical exams are closer to reality, then the differences between the parties will be narrowed, and narrowed differences lead to fewer motions and quicker resolutions of cases;
Quicker resolutions of cases leads to fewer burdens on the judiciary, which can then focus its limited resources on cases with bona fide differences instead of contrived differences.

In essence, the only ones who lose out here are those that seek to commit insurance fraud.

I have spent many hours on this series. Now it is up to you, dear reader, to do something about it.

If you’re a prosecutor, then have the courage to investigate as the scale may be stunning in its expanse.

If you’re a journalist, take the time to further uncover the depths of the fraud.

If you’re a lawyer, take the time to educate as many as you can, via op-ed pieces, websites, newsletters or any other medium you can use, and make it clear in preliminary conference orders that your client has the right to this.

If you’re a judge, you can remove the ambiguity over whether these medical-legal exams can be recorded, and remove the ambiguity over what occurs during those exams.

If you’re a legislator, remember this when insurance companies scream they are the victims of insurance fraud, and you can wonder if they are actually the cause.

I’m done banging this keyboard. I’ve given you more than ample evidence to raise questions and investigate further.

The issue is yours. What will you do with it?

I rest. For now. And reserve the right to reopen my case.

Updated: I didn’t expect to reopen my case so soon, but:

Part 6: To Tell the Truth: Which Doctor’s Signature is the Real One?

Part 7: Doctor Testifies That Six Different Signatures Are All His (8/5/13)

July 12th, 2013

Programming Note on Quickie Medical-Legal Exam Series

Thus far I’ve done three pieces this week on quickie defense medical exams, starting with Dr. Michael J. Katz getting busted for lying, the sanctions he may face and an investigative analysis of some of his other exams.

I intend to continue next week with more, including another investigative piece on how much time some other doctors popular with insurance companies spend with the claimants. Was Michael Katz (and Dr. Robert Israel before him) an aberration?

The story, by the way, has been ignored by the main stream press. Despite that, there have been over 15,000 page views of those blog posts. For a small, niche blog like mine, that’s a lot.

While some have come in from Above the Law (calling the story a “blockbuster”) and a couple of other blogs such as the Village Voice (which scored an interview with Dr. Katz), the vast majority have come in directly because they are circulating in the local legal community via email. Reddit, Facebook and Twitter have accounted for more as part of the word-of-mouth spread.

While the press might not yet understand what is happening, the local legal community knows that these doctors have seen thousands of claimants, and all those cases will be affected, with tens of millions of dollars or more on the line.

Also, a new website seems to have been spawned dedicated to the quickie medical exam: Bad IME

Stay tuned for Part 4.

(And a hat tip to Professional Liability Matters for the Pincchio graphic.)

July 10th, 2013

So, Just How Short Were Dr. Katz’s Medical-Legal Exams? (updated)

In part one of this series on defense medical exams I wrote about Dr. Michael J. Katz getting busted for lying on the witness stand about the one minute and 56 second orthopedic exam he did in Bermejo v Amsterdam.

In part two I followed up with Judge Duane Hart’s subsequent referral this week of Dr. Katz for civil contempt, criminal perjury and professional misconduct proceedings.

Now in part three let’s turn to investigating other exams that Dr. Katz has done, to see if his conduct in Bermejo was an aberration or systemic. I’ll try to quantify his medical exams.

But how do you quantify quality? Well, you can start by looking at its most basic element: How much time did the doctor spend actually testing/measuring/probing the person? Because if the time is too short, it’s simply impossible to do many tests.

That is a basic premise that even Dr. Katz was forced to acknowledge, crude as it is. After testifying that his first exam of Manuel Bermejo took 45 minutes (as per his notes) and his second exam of Mr. Bermejo likely took 10-20 minutes (based on his custom and practice), and plaintiff’s counsel knowing for certain that didn’t happen because he secretly videotaped the event, Dr. Katz was asked if his exam “could have taken two to three minutes.” Dr. Katz testified, “I don’t think that’s really potentially possible.”

No matter how good a doctor may be, it still takes time to run a person through the various tests needed for an orthopedic evaluation. Nobody disputes the premise.

Now all you folks reading this will agree that anecdotal evidence is a lousy way to prove a point. What if, for example, Dr. Katz’s one minute 56 second exam was an aberration, for whatever reason? How would that reflect on all the other exams he has done? Does that one incident reflect a pattern of behavior? Does it reflect on a potential perjury prosecution?

Since anecdotes are of only limited use, I looked for a database to analyze Dr. Katz’s exams. And I found one, which I’ll discuss momentarily, with dozens of his exams and with the time of each one recorded.

Before discussing my analysis of those reports, however, I need to discuss the nomenclature that gets used. Ever since I was sworn in 26 years ago, the term “Independent Medical Exams” has been used by lawyers and judges to describe the system by which insurance companies hire doctors to examine people that make claims in lawsuits, or for no-fault benefits or workers’ compensation benefits.

That nomenclature, Independent Medical Exams, has long been the subject of derision among plaintiff’s attorneys due to the vested interests the insurance companies have in limiting payments, and the “frequent flyer” doctors wanting some of that nice, steady insurance company business.

Many of us that share my side of the v. will stop others trying to discuss the “IME,” insisting that they be called for what they are: Defense Medical Exams, or DMEs. The term medical-legal exam can also be used as a neutral phrase, but the one thing you can’t call them is independent. Some in the judiciary, including Chief Judge Jonathon Lippman, agree.

I’ll support my point that Dr. Katz’s quickie DME exam of Mr. Bermejo was not a one-off kind of event, I hope, by pointing to the only databank I know of on the subject, collected from IME Watchdog. This young company sends a “Watchdog” with plaintiffs on these exams, taking notes on what happens. It isn’t generally advisable that the trial lawyers themselves attend, for if they want to challenge the doctor regarding what happened, they might become a witness, and the trial lawyer can’t be a witness.

As a young lawyer I went on many of these myself, since I wasn’t going to be trying the case. But others that also accompany the clients are paralegals, nurses and folks with a general familiarity with how the exams are done, and the fortitude to say “no” to the doctors if they ask inappropriate questions.

An inappropriate question would be “how did the accident happen?”. That’s inappropriate because the doctors are there to report on the injuries, not to conduct an off-the-record deposition on liability that they will then memorialize in a report in their own words. The defense lawyers and doctors already have the depositions that discuss the event itself, so letting your client be cross-examined by the defense doctor, without a stenographer present, could be foolish.

So if a doctor claims he did x at the exam, and didn’t actually do x, there will be someone there to testify about it (other than the plaintiff who is simply trying to follow the doctor’s instructions and can’t be taking notes at the same time).

Since there was a sharp conflict over what happened at the first exam of Mr. Bermejo — the doctor claimed it was 45 minutes and the plaintiff’s paralegal, also in attendance, testified it was about 10 minutes, but only three or four of those minutes was part of the actual exam — plaintiff’s counsel decided to surreptitiously record the second physical exam. As noted in the initial post in this series, he’d been burned once and didn’t want it to happen again.

Now for the data I promised you, looking at other medical-legal exams: As of July 9, 2013, IME Watchdog has attended 1,378 defense medical exams.

I’ve obtained their reports on many of the “frequent flyer” doctors, of whom Dr. Katz was one of the most frequent. The time he spent actually examining people is reflected on their reports. Dr. Katz’s custom and practice for the 36 exam reports that I viewed seem to be a very long way from the 10-20 minutes that he told Justice Hart for the second exam, and light years from the 45-minutes he claimed for his initial exam.

On the 36 IME Watchdog reports I viewed, I found Dr. Katz spent an average of 4:10 on each one:

2-minutes — 1 time
3-minutes — 5 times
4-minutes — 8 times
5-minutes –- 11 times
6-minutes –- 2 times
7-minutes — 3 times
8-minutes — 1 time
9-minutes –- 2 times
10-minutes -– 1 time
12-minutes — 1 time
20-minutes – 1 time

Since Dr. Katz testified at trial that he didn’t remember the second exam that got him into trouble — though Justice Hart was incredulous as to the claim of 45-minutes on the first exam (“What universe does he live in? If I ever see a doctor do a 45-minute IME it will be the first time.”) — Justice Hart asked him about his custom and practice. That, Dr. Katz testified, would be 10-20 minutes.

So if you remove the two outliers (a 2-minute and a 20-minute exam) in trying to find a “customary” evaluation then you get 3:45. I don’t think too many folks would dispute that either of these two numbers, 3:45 and 4:10, is a very long way from 10-20 minutes.

There are more exams reports, but these 36 were taken at random and I think after seeing that many it likely represents a pretty good sampling.

Update: After publishing this, I heard from IME Advocates, which also sends someone to accompany litigants to these medical-legal exams. They have records on 20 more DMEs from Dr. Katz. Those stats look like this, for the time actually spent on the exam itself, with an average time of 4:45, inclusive of one aberrational one:

3 minute exams – 5
4 minute exams – 7
5 minute exams – 4
6 minute exams – 2
7 minute exams – 1
13 minute exam – 1

It’s also worth noting another little nugget of testimony that Dr. Katz gave, at a trial before Brooklyn Supreme Justice Francois Rivera that I wrote about quickly at the the bottom of my first post on the subject. This was the case where, after making an inquiry, Justice Rivera said that he was “satisfied that this witness is less than forthcoming” and was concerned with Dr. Katz “materially misleading the court.”

In the case before Justice Rivera, Dr. Katz was also challenged on the length of his exam, with the plaintiff’s testimony that it took two to five minutes. Dr. Katz was asked if he had ever done them in five minutes. He said he wasn’t certain, but that “it would be out of the ordinary.” In fact, a five minute medical-legal evaluation that may be used to turn injured people out of court and deprive them of insurance recoveries that they are entitled to, was exceptionally ordinary for Dr. Katz.

My personal opinion is that when you think about insurance fraud, this is a mighty big thing to consider. He once testified, after all to doing 750-1,000 medical-legal exams a year.

Do I have more to come? Will there be a part 4 to this series? What do you think?

Updates:

Part 4: Premature Evaluations — the Evidence on Quickie Medical-Legal Exams (7/16/13)

Part 5: Quickie Medical Exams: What Next? (7/23/13)

Part 6: To Tell the Truth: Which Doctor’s Signature is the Real One? (7/30/13)

Part 7: Doctor Testifies That Six Different Signatures Are All His (8/5/13)