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 16th, 2013

Premature Evaluations – The Evidence on Quickie Medical-Legal Exams

When I started this series, dear reader, I had no idea it would be so easy to find multiple doctors doing 1,000- 2,000 medical legal exams each year, and that I would be able to demonstrate that their average exam times were likely under five minutes each. But if you read today, you will see that this is the result from my investigation. Welcome to Part 4.

I didn’t write this multi-part series just to pick on orthopedist Dr. Michael J. Katz because he was busted for lying on the witness stand about his secretly recorded one minuted 56 second evaluation. That type of story is a one-day affair.

Nor am I doing it because Justice Duane Hart shipped the transcripts off to the DA, the Chief Adminsitrative Judge and the Office of Professional Medical Conduct. Again, that would be another one-off kind of story.

Nor am I doing it because my analysis found that his usual exam is likely under five minutes, which is also contrary to what he testified.

No, it really isn’t about that. Dr. Katz, you see, is a symptom of a larger problem. So is Dr. Israel, who was placed on probation for his conduct doing defense medical exams.

If it was just about them, you might think these two were mere aberrations. But I’m here to present evidence that these premature evaluations are part of what I think is a systemic disease. It isn’t something new, though I have new material. It was evident four years ago when the New York Times did a story.

The Times covered the problem of bogus medical-legal exams back in 2009 as it pertained to Workers Compensation claims. The article was scary in how awful and slip-shod they were. And a secret videotape came into play there also.

The substance of the article was that their review of case files and medical records and interviews with participants indicated that the exam reports were routinely tilted to benefit insurers by minimizing or dismissing injuries.

The doctor nabbed on video by the Times was Hershel Samuels, caught dictating injuries as the exam was in progress, but the report came back without injuries. This quote was priceless:

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Dr. Samuels, who was 79 at the time, surrendered his license four months later.

To injured people the Workers’ Comp payments could mean putting food on the table and paying the rent; to others it is a “game” on getting $100-200 for each medical exam in the hope of a big volume practice, while turning a blind eye to the physicians’ oath to “Do no harm.”

If you want to understand the scale of all this, and why I’ve been banging away on my keyboard about these exams starting with Dr. Katz, consider this: In the Workers’ Compensation arena alone there are more than 100,000 exams each year.

One of the doctors in that New York Times piece was Dr. Edward Toriello, an orthopedist. The Times has this to say about him:

Like many who perform the exams, he views the compensation system as bloated with charlatans. Dr. Toriello, who does about 30 such exams a week, estimates that 80 to 85 percent of the time he finds no disability or need for medical treatment in workers whose doctors have found otherwise. He says the disparity is explained by the “comp mentality.”

Comp mentality by the injured? Or a desire to minimize injuries so that the insurance companies will give him more business? Should someone investigate who the charlatans are?

I decided to do some follow up and see how long his exams actually were, the same way I did for Dr. Katz last week.

You’ll remember, I hope, that the data I used previously to discover how long Dr. Katz spent on his medical “exams” — yeah, I think scare quotes is appropriate now for that word — was gathered from two companies that send representatives to the evaluations with the clients, IME Watchdog and IME Advocates. They both track how long the exams take (among other things), and I found from their data that Dr. Katz’s exams were just four to five minutes long on average.

Dr. Toriello has testified he does 30-40 exams each week (1,500-2,000 per year). The two companies furnished me with data from 57 reports they had on Dr. Toriello. And the average time for one of Dr. Toriello’s exams, the basis of which might have profound impact on an injured person’s life for many years to come, or even for the rest of their lives is …. No, it isn’t 45 minutes. Or 20 minutes. Or 10 minutes.

It’s four minutes and 49 seconds. The distribution looks like this:

1-minute exams – 2
2-minute exams — 11
3-minute exams — 9
4-minute exams — 4
5-minute exams — 12
6-minute exams — 7
7-minute exams – 5
8-minute exams –- 1
9-minute exams — 3
11- minute exam – 2
14-minute exam – 1

Dr. Lisa Nason is another frequent orthopedic examiner. And Dr. Nason once testified that, at the medical evaluation office she goes to in Brooklyn for just this purpose, they try to see claimants every 15 minutes. Her average time doing an exam in the 37 reports that I have? 4:22 minutes. Her distribution looked like this:

1-minute exams — 1
2-minute exams — 5
3-minute exams — 10
4-minute exams — 5
5-minute exams — 8
6-minute exams — 2
7-minute exams — 2
8-minute exams — 3
11-minute exam –- 1

But wait! I’ve been discussing time doing the exam, but the testimony that I found from her about seeing someone every 15 minutes includes taking a history. Wouldn’t it be fair to Dr. Nason to do an apples-to-apples comparison and include her intake time asking how the claimant felt? Maybe then it will come to 15 minutes?

Lucky for you, dear reader, the reports I have almost always indicate the time taking a history. But the total time, alas, even when you factor in history, still doesn’t make it to 15 minutes. Which is not so lucky for Dr. Nason. Her average intake took 4:08, and the distribution looks like this:

1 minute intake — 4
2 minute intake — 7
3 minute intake — 6
4 minute intake — 6
5 minute intake– 6
6 minute intake — 1
8 minute intake – 3
10-minute intake -1
11-minute intake – 2
[One of the 7-minute exams includes the intake, so the exam average should be a bit lower and the intake average a bit higher.]

So, in total, she is averaging 8:30 minutes total time per claimant, inclusive of talking, not the 15 minutes she discussed with a jury.

And then there is Dr. Jean-Robert Desrouleaux, a neurologist. I heard he was testifying in the Bronx yesterday before Judge Julia Rodriguez, so, with a draft of this piece already written, I decided to go watch. Some of his exams, he testified, are done in the same place and on the same day as Dr. Nason, sort of like a factory tag-team match for the insurance company.

He testified that these exams are only 1-2% of his practice. But then he testified he does 20-30 per week (1,000 – 1,500/yr.), taking a total of four to six hours each week. I’ll help you with the math: if he is doing medical-legal exams five hours per week and this is 2% of his practice he is working 250-hour weeks, which is mighty impressive considering the week has just 168 hours in it.

He also claimed to be paid about $125-$150 for each one. Imagine, in the short time available, trying to read medical records, x-rays, deposition transcripts, legal filings and whatever else the insurance company might send, do an intake, conduct an exam and write a report for that price. Something has to give for this business model and if you guessed accuracy and quality then you would be guessing the same as me.

Dr. Desrouleaux was asked if any of his exams were under three minutes. He said he would be surprised if that was true. He was asked if any were under five minutes. He again said he would be surprised if that was true.

But I have 32 reports from Dr. Desrouleaux and he averages four minutes 15 seconds per exam, and seems to have a pretty heavy emphasis on the two to three minute variety. He even has some one-minute exams.

Can you imagine, if you were a claimaint, that your economic future could be decided by a one to three minute exam? His distribution looks like this:

1 minute exam — 3
2 minute exam — 8
3 minute exam — 8
4 minute exam — 5
5 minute exam — 1
6 minute exam — 1
7 minute exam — 2
8 minute exam — 1
10 minute exam –1
15 minute exam –2

Don’t click away, I got more stuff in this evidentiary round-up!

When the New York Times did its investigation, it found that Dr. Samuels was being hired by “IME” brokers — there’s those scare quotes again — who would actually transcribe his reports. The brokers could, in essence, do whatever they wanted with those reports changing findings if they wanted to, and the doctor that had done a gazillion exams would likely never know the report had been changed.

When the doctors take the witness stand they often call these companies “expert panels,” as if it is some badge of honor to take part.

I wrote about one of those companies back in 2008 (How to Fool a Jury (Is It Insurance Fraud?)), called Integrated Risk Services. It seems that one of their doctors forgot to remove the letter they sent to him about how to write a report — the letter that had these delightful instructions about how to write a skewed report:

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

Nothing like a completely objective exam. huh?

There are some in the judiciary that understand the problem with these exams, though I fear they are in the minority. Two of them, however, happen to be Chief Judge Jonathon Lippman and Appellate Division Justice Justice Douglas McKeon, who I wrote about back in 2009: Is the “Independent” Medical Exam Dead? after Rowe v. Wahnow was decided in the First Department.

In Rowe, plaintiff’s auto case was tossed out based on the “IME” reports of the defendant’s doctors. But in dissent comes Justice McKeon, ripping into the concept that such “IME” reports are actually independent. And he does so by citing Chief Judge Lippman:

…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).

Have things changed since 2009? Will the story of what happened to Dr. Katz make its way to the appellate judges? Will the evidence of quickie medical exams finally coming screaming home to the trial courts? Will more of these exams be taped, surreptitiously or not?

Stay tuned for Part 5….

Update –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 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)

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)