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)

July 9th, 2013

Dr. Michael Katz’s License and Liberty Placed in Jeopardy Due to Lying Over Medical-Legal Exam

Reporting by: Samson Freundlich and Eric Turkewitz
[Post based on handwritten notes from inside the courtroom — subject to correction when we obtain the transcript.– Transcript now in; edits added in red]

The time had come for a local orthopedist to face the music yesterday afternoon after a New York judge found he had lied under oath in April. But he was nowhere to be seen in the courtroom.

Queens Supreme Court Justice Duane Hart showed no mercy in leveraging the few powers that he had at his disposal to see appropriate punishment administered to Dr. Michael J. Katz for lying about a medical-legal exam that he conducted. The exam in that multi-million dollar case took just one minute and 56 seconds, according to a surreptitiously made surveillance video, and Justice Hart concluded it would not have been possible for the doctor to make the findings that he did in that brief time.

As we discussed in our initiating post, Justice Hart believed he was without legal authority to directly sanction Dr. Katz for the wasted time and money of the two to three week trial, because Dr. Katz was not a party to the lawsuit. But that didn’t mean the court didn’t have other arrows in its quiver.

The court has ordered the trial transcripts be forwarded to the following for further inquiry, investigation and appropriate action:

Referral to the Queens Administrative Judge so that Dr. Katz can be held in civil contempt of court for perjury;
Referral to the Queens District Attorney for prosecution for perjury; and
Referral to the Department of Health – Bureau of Professional Medical Conduct to evaluate his fitness to practice medicine. (This statement was made off the official record.)

Dr. Katz, it seems, blundered badly when he declined to leave the medical-legal consult business in which he was seeing upwards of 1,000 people a year. From this he once testified that he may have had revenues of a million dollars or more per year. Had he bowed out of that business and returned his efforts to practicing medicine, instead of trying to assist insurance companies generate greater profits, Justice Hart might have been more lenient on him.

A new trial has been ordered for September 9, 2013. When plaintiff’s counsel requested the doctor’s tax records for the new trial yesterday, to challenge the doctor’s assertions on revenues from his medical-legal business (he testified that 40% of his practice was medical-legal), the judge shrugged off the application as collateral to the fraud that he saw. Dr. Katz, apparently unremorseful for his conduct or naively unaware of the gravity of his predicament, was still doing these medical-legal exams even after he was caught perjuring himself on April 11th. The judge’s ire, as noted yesterday, was apparent through his on-the-record comments:

It is like a wound that is festering. Every time he does another IME. When is it going to stop? He is making 7 figures a year doing IME’s. Then he comes to my part and lies.

Justice Hart unsealed the court record July 1st, made the above referrals today, and Dr. Katz now sits in more legal hot water than he ever could have imagined just one week ago. There is still the prospect of Attorney General Eric Schneiderman investigating the cozy relationship between insurance companies and the doctors that so eagerly do their bidding. And litigation could easily follow in matters where judges and juries had previously relied upon Dr.Katz’s reports and testimony to get cases dismissed or to limit damages.

Defense counsel yesterday pleaded for permission to hire a new doctor for the September trial to examine the injured plaintiff. Justice Hart was steadfast and unwavering, however, as he shot that idea down, ruling that the defense was stuck with Dr. Katz for the new trial.

There is little doubt that insurance companies throughout New York are now scrambling to make similar motions for new doctors to examine a variety of litigants, both for Dr. Katz and Dr. Robert Israel, who was slapped with his own sanctions just last month.

With straight faces, the defense attempted to argue that Dr. Katz was now an adverse witness to their case due to an unsympathetic bench. Justice Hart was unmoved in the argument, and ordered that Dr. Katz must appear if subpoenaed by any party to the trial. He went on to say that if Dr. Katz attempts to invoke his Fifth Amendment rights to refuse to answer questions, that he would consider holding him in contempt.

Defense attempts to preclude Drs. Katz and Israel from testifying in future trials seem doomed to fail. They are, after all, eyewitnesses to injuries. If a convicted felon came upon a car accident shortly after it happened and saw injuries, would he be precluded from testifying simply because one side or the other didn’t like his testimony? If he saw the injuries a month or year later, would he magically be precluded? Are prisoners precluded from testifying? Making matters worse for those that hired these doctors over the years is that they are responsible for creating them as witnesses.

Justice Hart said that if Dr. Katz is subpoenaed and refuses to come to court, he will make sure that he is brought in and put on the stand. If he refuses to answer questions presented — and their appears to be no realistic way he could testify without further perjuring himself or admitting that his prior testimony was false — Justice Hart said he would consider a further contempt hearing and that there would be strong negative inferences in front of the jury.

The physician, said Justice Katz, “has no further right to claim the 5th Amendment” as he has already testified. July 8 Transcript

Yeah, there is more to come in this story, and more regarding the broader implications for our very busted medical-legal exam system that allows insurance company doctors to question litigants without a stenographer or recording and write down whatever they want in their reports and present that to judges and juries.

Stay tuned….

Updates:

Part 3: So, Just How Short Were Dr. Katz’s Medical-Legal Exams? (Dozens of his other exams are investigated) 7/10/13)

Part 4: Premature Evaluations — the Evidence on Quickie Medical-Legal Exams (A look at other doctors and their 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)

July 8th, 2013

Judge Rips Doc for “Huge Lie”; Perjury Prosecution Possible; Victims May Number in Thousands

Supreme Court, Queens County

Reporting by Samson Freundlich and Eric Turkewitz

Last week a state trial judge unsealed a record showing falsified testimony by a New York orthopedist who conducts up to 1,000 medical-legal exams each year. Queens Supreme Court Justice Duane Hart unsealed the April 12, 2013 testimony of Dr. Michael J. Katz as he pondered a referral to the District Attorney for perjury over “a huge lie” concerning so-called “Independent Medical Exams.”

Dr. Katz, an orthopedist frequently hired by insurance companies to defend personal injury cases — who has testified that he may make over a million dollars a year just from his medical-legal practice — had testified in the recent case that he likely spent 10-20 minutes on his examination of the plaintiff. A surreptitiously made video, however, revealed that he spent a mere one minute and 56 seconds on the exam and could not have made all the findings he testified about within that short time.

The underlying labor law case concerns a severe ankle fracture that resulted in a fusion of the joint as well as a shoulder injury that required surgery, suffered when Manuel Bermejo fell from a Bakers Scaffold. The court indicated that there was potential for a verdict of “several million dollars” based on the injuries.

The transcripts in Bermejo v Amsterdam that we obtained over the July 4^th break detail Justice Hart’s concerns not merely with the fact that Dr. Katz was dishonest regarding the estimated length of the actual exam, but that the substance of what he testified to could not be true. Justice Hart said, “He testified as to findings that he obviously could not have had in a minute and 56 seconds.”

These medical exams are often critical to the defense of personal injury cases, and are also used by insurance companies to “evaluate” whether they should continue to pay No-Fault or Workers Compensation benefits. The reason the exams are often problematic is that the insurance carriers have a vested interest in limiting payments and only retaining doctors that give them favorable reports, and there is no stenographer to record what transpires. Quickie exams that serve only to deny benefits to the injured are a constant problem.

But this case had actual evidence in the form of a secretly made video recording. It shows Dr. Katz examining Mr. Bermejo as plaintiff’s trial counsel, who recorded it, and a paralegal-translator looked on. This was the second exam that Dr. Katz had done of Mr. Bermjo, as he had undergone shoulder surgery after the first examination.

Plaintiff’s counsel was moved to record this second exam, according to court transcripts, because he believed that Dr. Katz had been dishonest in his report of what transpired at the first one. The initial exam, Dr. Katz claimed, lated 45 minutes and he also claimed that plaintiff’s counsel impeded it. (The paralegal that was present took the stand and sharply disputed both points.) When the time came for the second exam, plaintiff’s counsel secretly recorded it to protect himself from any possible complaints or accusations from the doctor.

This secret recording was not exchanged during the litigation, as plaintiff’s counsel said there was no requirement to do so since Dr. Katz was a non-party, and the only potential use of the video was if Dr. Katz perjured himself. When Dr. Katz offered testimony at trial that was completely inconsistent with the actual events, the evidence was submitted to the court. As a result of this video substantively contradicting the trial testimony, and concerned about a breach of the discovery rules and orders by the failure to disclose, Justice Hart declared a mistrial after 2-3 weeks of trial.

In a remarkable hearing before Justice Hart after the false testimony had been given, Dr. Katz’s criminal defense attorney stated that the perjury was the fault of the court because the court had demanded the doctor tell the truth in answering the question about how long such exams usually take. Justice Hart characterized this as “the dumbest thing I ever heard” either inside the courtroom or out.

At a hearing July 1st to apportion responsibility for the cause of the mistrial, Justice Hart initially sanctioned the defense firms $10,000.00 each, noting that “It is the carriers and Dr. Katz that I would love to sanction, but I can’t do that” as sanctions are restricted by the court rules to parties and their attorneys. Unhappy with that restriction, Justice Hart said, “You can probably hear my teeth grinding.”

The court had also initially sanctioned plaintiff’s trial counsel $250 for not exchanging the video, which sanction was also withdrawn and plaintiff’s counsel absolved of fault for causing the mistrial. The judge derided Dr. Katz on his assertion that his first exam lasted 45 minutes, and said “it would have been reasonable” to want such a recording. Justice Hart, who has served since 1981 as attorney, law secretary or judge, said regarding the alleged 45-minute claim by Dr. Katz, “What universe does he live in? If I ever see a doctor do a 45-minute IME it will be the first time.”

All the attorney sanctions were vacated later in the hearing.

Justice Hart, in finding that it was the doctor’s false testimony that caused the mistrial, stated that while he had seen abuse of the system before, “This is clearly the most blatant example of a doctor getting up there and just not telling the truth.” He also suggested that plaintiff’s counsel who had spent $40,000 on trying the case so far, should sue Dr. Katz for the expenses and legal fees caused by the mistrial.

Feeling handcuffed by the relatively few options available to him for a non-party witness that lies and causes a mistrial, and recognizing that there are others doing the same, Justice Hart asked the attorneys:

How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand? How do people like me, people in this building, people that wear black robes send a message to them that they cannot condone perjury?

Despite all the admonitions thus far from Justice Hart the matter remains open as Dr. Michael Katz is still conducting medical-legal examinations and has refused to retire from these activities. Justice Hart had offered him the option of bowing out of the business and he declined. Thereafter the court ordered a full transcript, intending to send the matter to the Administrative Judge for a civil contempt hearing and send the matter to the District Attorney with a recommendation that they explore a perjury prosecution.

Regarding the fact that Dr. Katz was still doing these medical-legal exams on July 1^st when this hearing took place, and recognizing that he had been caught lying back on April 12th, Justice Hart said:

It is like a wound that is festering. Every time he does another IME. When is it going to stop? He is making 7 figures a year doing IME’s. Then he comes to my part and lies.

Judge Hart did not mince words when he said that, aside from the effect of any potential criminal issues, that Dr. Katz’s career was essentially finished when it comes to his substantial medical-legal practice: “Dr. Katz’ future doing IME’s because he lied in this one will probably be finished.”

“It is that the tape shows that he didn’t do the tests that he spent a considerable period of time talking about that he did. That is the perjury. Yes, didn’t do the tests. It is not just me saying it. It is not just the plaintiff saying it. The defendants are saying it too. Does your client really think if the insurance industry or some of the insurance companies that hired him before when they find out that he lied, do you really think they are going near him?”

The impending denouement of Dr. Michael Katz is all the more stunning since it comes fresh on the heels of his fellow New York orthopedist Dr. Robert Israel being sanctioned for his conduct in medical-legal exams. Dr. Israel had been doing up to 1,500 per year, but has now been barred from doing them for three years.

Together, Drs. Katz and Israel have no doubt sent New York’s insurance carriers frantically scrambling, as the two of them were responsible for thousands of insurance exams each year, the results of which are now all thrown into question. The scope and scale of insurance fraud being perpetrated — by the insurance companies themselves — could have resulted in hundreds of millions of dollars in payments being withheld. It remains unclear just how many New Yorkers have been fraudulently denied benefits based on quickie exams that were set up to deny benefits and minimize jury verdicts.

The scope of such an investigation of the insurance industry, it seems, could only be done by Attorney General Eric Schneiderman.

Last week’s hearing regarding Dr. Katz was adjourned until this afternoon (July 8th) at 2:00 pm. It is unclear whether Dr. Katz will voluntarily agree to halt his lucrative medical-examination business — though this now seems like a moot point now since the record regarding his false testimony has now been unsealed.

It’s worth adding that this is not the first time Dr. Katz was caught by a court with less than candid conduct that caused a mistrial. A year earlier while testifying in Brooklyn, Dr. Katz went outside the confines of his report to suddenly testify about a relationship between tinnitus and aspirin. Justice Francois Rivera, after making an inquiry, said that he was “satisfied that this witness is less than forthcoming” about his decision to suddenly stray from his report to a new subject, and was concerned with Dr. Katz “materially misleading the court.”

The legal fallout may result in any or all of the following:

Civil contempt of court;
Criminal perjury prosecution by the District Attorney;
Civil suits for causing this mistrial by any/all of the attorneys involved;
Civil suits based on fraud by past litigants saying they were also victimized by Dr. Katz;
Action against his license from the Department of Health-Bureau of Professional Medical Conduct;
Racketeering suits for conspiring with insurance companies to commit insurance fraud; and
Investigation by the Attorney General into the issue of insurance fraud perpetuated by the insurance industry.

These predictions regarding a wide-ranging insurance fraud scandal are backed up by Justice Hart, who repeatedly referenced the insurance carriers as being part of the problem:

I can blame the attorneys and the carrier who hired him to do an IME on this case because they should have known what this guy was doing. They should have known. And again the man is making literally millions of dollars doing IME’s. Now, he gets caught lying. There is no other way to put it. He lied. There is no other way to make it nice. He said the IME took between 10 to 20 minutes. It took a minute and 56 seconds.

The transcript of the proceedings is here: July 1 Transcript

From what we’re watching unfold, this may be the tip of the iceberg. Stay tuned…

Part 2: Dr. Michael Katz’s License and Liberty Placed in Jeopardy Due to Lying Over Medical-Legal Exam — 7/9/13

Part 3: So, Just How Short Were Dr. Katz’s Medical-Legal Exams? (Dozens of his other exams are investigated) — 7/10/13

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)