February 15th, 2008

New York Lawyer, Practicing in Texas, Solicits in Georgia

It’s just like a law school exam. And the sugar refinery explosion in Georgia and the “vulture” like solicitation by an out-of-Georgia attorney brings it up.

Here it is:

  • Jeffrey D. Slakter practices in Dallas [fn1];
  • He solicited clients in Georgia for the explosion via a newspaper advertisement, according to this story on law.com.
  • According to his website, Slakter also has a license to practice in New York.

Leaving aside the issues of Texas and Georgia ethics rules regarding attorney advertising and solicitation, and the fact that he apparently has no Georgia license, we turn to the separate issue of whether Slatker is obliged to follow New York’s ethics rules regarding his out of state conduct.

According to New York’s rules, one can’t solicit for 30 days after an accident. [fn2] This rule was established after the Staten Island Ferry disaster here in New York in 2003 that killed 11 and injured 71. Some attorneys, sad to say, raced down to the Staten Island Advance to beat the 3 pm deadline for ad submissions the next day. At that time, rescue and recovery was still ongoing.

So the question is, does New York’s rule pertain to any new York attorney regardless of where s/he happens to be practicing?

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fn1. Link provided via TinyUrl re-direct, to avoid giving him the benefit of any search engine optimization for his web site;
fn2. While some parts of New York’s new rules were held unconstitutional, this part was not.

 

February 14th, 2008

State Farm Hit With Civil RICO Claim Over Sham Medical Exams

State Farm has been sued for racketeering in New York with a claim that it conspired with “Independent Medical Exam” companies and medical practitioners to produce fraudulent and sham medical reports. The suit, filed January 30th in the Eastern District of New York, is brought under the Racketeer Influenced Corrupt Organization Act (RICO). (This story has not been previously reported.)

State Farm acted in concert with “IME” companies and doctors to furnish fraudulent and boilerplate reports, according to the suit. The objective was to procure “scientifically dishonest reports in order to terminate benefits.” The Complaint is here: McGee-v-StateFarm-RICO-Complaint.pdf

Of particular interest is that the plaintiff is not an injured accident victim that was wrongfully deprived of insurance benefits, but John McGee, a physician practicing rehabilitative medicine. The physiatrist asserts that claims submitted to State Farm are being wrongfully denied, thus depriving him of the revenue he should be receiving for the treatment he rendered. He alleges that “sham” examinations were done by the defendants to procure false findings so as to cut off the benefits, resulting in the claims he submitted being denied.

The Complaint alleges that State Farm and the other defendants communicated that the evaluations and reports must deny that its insureds needed future treatment and that there was a lack of medical necessity for prior treatment. The Complaint goes on to state that State Farm engaged the other defendants with the expectation that reports received would be favorable to the insurance carrier, and to the detriment of the insured.

McGee states that “State Farm made it known to the other defendants that if they did not provide sufficient denials within the evaluation reports then State Farm would not use their IME services.”

The defendant “IME” companies are Independent Physical Exam Referrals, Inc., and Metro Medical Services, LLC.

According to the website of Independent, they play no role in the production of the report:

We have addressed the “independent” part of the examinations by requiring all reports to be independently processed by the medical provider, typed and forwarded on their own stationary. IPER does not participate in the production of the reports, thus ensuring an arms length transaction for our clients. IPER reviews all reports by a registered nurse only to ensure that essential components of the report are present and that your questions are answered. The medical opinions rendered are those of the examining physician and based upon his/her clinical assessment and review of medical records.

This description, however, is directly at odds with the allegations of the complaint, which states that “boilerplate medical evaluation reports” are used. That may be an easy thing to prove if identical language is used in many different reports.

Whether these companies are like Integrated Risk Services Inc. — a company I wrote about Tuesday that specifically states it doesn’t want information favorable to the plaintiff included — remains to be seen. (See: How to Fool a Jury (Is It Insurance Fraud?))

Another part of the Complaint alleges that State Farm pays an excessive fee to the IME company for the doctor’s services, and that the money is then shared with the IME company or a kick-back is given to non-medical personnel. The complaint sets forth (in paragraph 19) that felonies have been committed with respect to the sharing of medical fees with non-medical personnel.

Thanks to my anonymous tipster for the heads up.

The plaintiff is represented by Bruce Rosenberg of Bellmore, New York.

Update 3/2/08 — Allstate was just hit with a similar suit: Allstate Slammed With RICO Charge Over Sham Medical Exams

Update 3/3/08 — A Doctor Sued, In Insurance Company RICO Suit, Responds To The Charge

 

February 14th, 2008

Fonzie Takes The Stand in Ritter Trial

Actor Henry Winkler took the stand yesterday in the John Ritter medical malpractice trial.

According to a story at E-Online, two hours before Ritter was taken to the hospital (where he died of aortic dissection):

“We were talking in the middle of the soundstage,” Winkler said. “He was sweating, and told me, ‘You know, I really need to get some water.’ I went one direction and he went the other, and that was the last time I ever saw him.”

More on the story at the LA Times and Huffington Post, among others.

(Hat tip to Christopher J. Robinette at TortsProf)

 

February 14th, 2008

"Legal Vultures" Catch Eye of GA Disciplinary Committee Member

Ken Shigley, a Georgia personal injury attorney, is not happy. His ire is directed today at out-of-state attorneys who have swooped into Georgia with full-page ads to solicit victims of a large sugar refinery explosion and solicited victims at a burn clinic. Should the out-of-state lawyers be concerned?

Well, Shigley is not just blogging about it, but also happens to be on the Disciplinary Rules and Procedures Committee of the State Bar of Georgia.

And Shigley thinks, as do I, that the conduct of the few “makes us all look bad.” Better we clean our own house than wait for others to come and in and do it for us.

More:

 

February 12th, 2008

How to Fool a Jury (Is It Insurance Fraud?)

This is a lesson on how to fool a jury. And how to get caught. It’s about doctors and lawyers and ethics that belong in the sewer. It’s about potential insurance fraud. And it is an exposé of a very seamy side of personal injury trial practice. And I will name names. It might be the most important post I’ve made since I started blogging, and it comes out of a Manhattan trial that just concluded.

The story emerges because doctors who performed “independent” medical exams in a personal injury case were told, in writing, to game the system. A document was discovered in the file of a neurosurgeon that included this: If prognosis appears good, then state that – otherwise be silent.

We start with a basic aspect of personal injury practice: When you claim injuries to your body in a lawsuit the other side is entitled to have a doctor (or two) examine you to see if your claimed injuries are legitimate. Courts and defense lawyers like to call these “independent” exams. But are they?

The scene is Supreme Court in Manhattan (this is the main trial court, not the top appellate court). And on the stand is Harvey Goldberg, a physiatrist that was hired by the defendants to examine the plaintiff, Gerard Malloy. Malloy had suffered a terrible back injury when he tripped over an exhaust fan that had been left in a darkened hallway in a building. In the well of the courtroom stands David Golomb, one of the city’s top trial lawyers, cross-examining Goldberg.

But all is not right with the report from the exam that Goldberg holds in his hands, because something seems to be missing. Like his opinions. So Golomb asks him, on a hunch, if there was another version of the report that did contain his opinions. Ummmm, well, now that you mention it, there had been another version comes the reply. Golomb presses on and discovers that Goldberg had not only been asked to edit his original report, but complied. He apparently took his opinion on the cause of Malloy’s injuries out of the original report. The testimony looked like this from a transcript provided to me:

Q: So why is the report dated more than [one month after the exam], December 12 of 2006? Why? If you don’t know, you can say that too, Doctor.
A: I don’t know.
Q: Was there a prior version of this report? Was it sent to anybody to look over or edit?
A: There may have been a prior draft that was corrected.
Q: Changed? We don’t know, do we?
A: There was an instance of the causality originally being requested, and then I was told that the causality was not requested.
Q: So if I understand you, you were told by the people asking you to prepare this report not to offer any opinion on what the cause of Mr. Malloy’s injuries, if any, or problems, if any, were? Did I just understand that answer correctly?
A: Yes.

Why was removing causation so important? Because plaintiff Malloy had been in a car accident five years earlier, and the issue of whether it was the car accident or the trip that caused the back injury was pretty darn important. And Goldberg was asked to take his opinion out. And he complied, thereby creating a new report that he knew was incomplete.

Remarkable? Keep reading because it gets worse. The next day neurosurgeon Douglas Cohen prepares to take the stand, as he had also examined Malloy for the litigation. But before Cohen takes the stand, Golomb sees the doctor talking with the defense lawyer in the hall. And the defense lawyer is holding a paper in his hand that came from the doctor’s file. And the lawyer is looking surprised, and very unhappy. And he knows that Golomb is watching the interaction.

With Cohen on the stand, Golomb discovers what that paper is. It is the instruction sheet for the doctor directing him to omit opinions from the “independent” report that are favorable to the plaintiff. Those marching orders, published here for the first time, included (IntegratedInstructions.TIF, another version of the file IntegratedRisk-Instructions.jpg):

  • Point out whatever findings or claims are not related [to the lawsuit]. Otherwise be silent on causal relationship.
  • If prognosis appears good, then state that – otherwise be silent
  • If you can state that plaintiff can participate in all normal activities, do so. If not, be silent

This instruction sheet form from the folks that hired him came from a company called Integrated Risk Services Inc., whose job it was to set up these “independent” medical exams. The instructions appear clear that this was not to actually be an independent report, but in fact, was designed to be a deliberately incomplete and therefore deceptive report. And Cohen had errantly brought it with him to court. That form instruction sheet, by urging deliberate omissions, essentially asked the doctors to falsely claim their exams and reports where “independent.”

So who runs this company and asks these doctors to do this?

A review of the website for Integrated Risk Services, Inc. reveals that this is “ATTORNEY MANAGED INDEPENDENT MEDICAL CONSULTATION SERVICES.” Attorney managed, eh? I wonder which attorney is urging deceit for “independent” exams? A corporate search through the New York Department of State web site reveals the company registered without a name in a post office box in Great Neck, New York, while the web site for the company gives a different PO box in Syosset, New York, also without any names. Nice.

Edit: On 3/25/08 Steven Fruchtman, an attorney out on Long Island, called to say that the company was his. My prior investigation, which tracked the company down through a residential address of his father, has now been rendered moot and been removed. Steven Fruchtman informs me that his father has nothing to do with his business.

Is it called lying when you deliberately omit pertinent opinions in an exam you are claiming is “independent?” Is it suborning perjury by asking someone else to do that on the witness stand? Is it insurance fraud to be so deceptive if the objective is to deprive an individual of insurance funds to which they may entitled? If a plaintiff was deceptive, would the insurance industry and big business scream fraud and go running to the American Tort Reform Association? Is there one standard or two?

I leave it to you, dear reader, to ponder whether ethical violations have occurred for doctors and attorneys involved. And this is not just left to the reader, but to the NYS Department of Health. And to the attorney ethics committees of the state if, in fact, this was an attorney managed company and perhaps, to the NYS Attorney General should any of them stumble upon this little exposé.

Update, 3/25/08: After Steven Fruchtman called today, I made edits to this post as a courtesy to him, including the removal of information regarding his father. He has been invited to comment here if he sees errors.
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Full Disclosure: I know David Golomb for over 25 years and he trained under my father when he was a newly minted attorney.