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.

August 2nd, 2013

Ribbeck Law in Hot Seat (Again) Over Air Crash Solicitation

Back in 2009 I wrote a couple times about Chicago based Ribbeck Law Firm’s attempts to procure clients after a plane crash in Buffalo. I questioned whether it was violating both New York’s 30-day moratorium on contacting victims/families as well as the federal 45-day rule that prohibits solicitation.

Now, according to this Associated Press article, they are in the hot seat over accusations of unlawful solicitation regarding the crash of Asiana Flight 214 in San Francisco. The National Transportation Safety Board has reported the firm to the agency that regulates attorneys for further investigation of its online communications and in-person meetings with passengers, presumably referring to its disciplinary commission.

According to the article, Ribbeck is the only firm that warranted such referral (so far). The referral came because because the NTSB “received an unspecified number of complaints about solicitations since the July 6 accident that killed three Chinese teenage girls and injured 180.”

Let me say, having covered Ribbeck’s conduct in the past, I’m not in the least bit surprised.

When I covered the crash of Continental 3407 in Buffalo on February 12, 2009 — covering it specifically to see if any firm was violating a new anti-solicitation rule in New York — Ribbeck popped up on my radar. Actually, it popped up on my Google search along with six other firms chasing cases.

The firm was the focus of two posts that I made. The first, on February 16th, detailed how it set up a website (www.continental3407.us ) specifically to solicit for the crash and ran Google ads to direct victims to the site.

The second one, a week later, pointed out that six out of the seven firms had yanked their ads down after my post ran. One did not. Ribbeck was still at it. But it modified its call to action (Please feel free to contact us at …) to now have merely expressions of sympathy, passenger lists, news, a “legal zone,” and contact information. Not very subtle.

Back then I focused on my opinion that Ribbeck had failed all four prongs of New York’s anti-solicitation test (as opposed to the federal prohibition).

Three days after my post appeared, entitled Ribbeck Firm of Chicago Still Soliciting Buffalo Plane Crash Victims? (And A Round-Up) , I wrote about how Ribbeck had also pulled down its ads. Perhaps they realized they had stepped over the line, or perhaps all the important contacts had already been made, or something else. I don’t know, no one called to let me know.

My decision to search for firms that might violate these laws was not accidental. In fact, the day after the Buffalo crash I wrote about how I would be looking, as this was going to be the first real test of New York’s then-new ethics rules on solicitation. It was during this same time frame that I wrote about how attorney ethics can be “laundered” with a variety of subterfuges: New York’s Anti-Solicitation Rule Allows For Ethics Laundering and Must Be Modified.

It’s taken a few years to get to this point, but it’s a point that I knew was inevitable.

The federal law that prohibits solicitations within 45 days, by the way, is 49 U.S.C. 1136 (G)(2):

(2) Unsolicited communications.– In the event of an accident involving an air carrier providing interstate or foreign air transportation and in the event of an accident involving a foreign air carrier that occurs within the United States, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney (including any associate, agent, employee, or other representative of an attorney) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.

Perhaps we will see soon how that rule gets interpreted within the era of website and online solicitations. But one thing is certain, this isn’t new stuff for Ribbeck. They’ve flown this route before.

August 1st, 2013

Industrializing the Legal Profession

The slick marketing packet landed on my desk and, just as I was about to toss it into the circular file — which is actually rectangular but that isn’t the point of this post — the tagline for the company hit me: “Industrializing the Legal Profession.”

Ugh. I didn’t even know what the hell it did as a company and I hated it already. Because, you know, I don’t have any clients that want to be industrialized. They want to be humanized.

Being industrialized, in fact, may be one of the reasons they called me. Sometimes a simple human apology will stop a person from ever calling a lawyer. Pro tip: People like to be treated as people, not as files.

By the time folks get to my office, they may already be part of the machinery of police reports, no-fault exams, claims reps and other indices of our bureaucratic society. The series that I have been doing on quickie medical-legal exams, in fact, is one of the sick symptoms of this system.

There is a good chance they will then be funneled through a litigation system where they have to wait in long lines for their cases to be heard, and not understanding why it takes as long as it does, no matter how efficient the lawyer is.

If I told them my law practice was to “industrialize” them, as opposed to humanize them, what do you think the reaction would be?

So I cracked open the packet of materials from Lexvia — the culprit with the awful tagline — and found that they are a company that outsources legal work to India. And they were supported($) by my local bar association and listed a whole bunch of firms and lawyers that I know, some of whom I actually like and have had drinks with at lawyer functions.

Thankfully — and I hope this is a bright spot — I did not find that tagline when I Googled it — which means it may be brand new — though they do have on one of their pages “Industrializing the Litigation Process,” which isn’t a whole lot better.

So a word to Lexvia, don’t use this tagline elsewhere. The reaction, I think, will not be good to those of us that think about such things.

And as to the lawyers that use such companies, ask yourselves what your clients would think about it. You say they don’t know? But I have the list, marked “Confidential.” And you know what? I didn’t agree to that. Nor did any of the other gazillion lawyers that this packet was sent to. Any of us could easily scan this page and put this up on the web. Easy peasy.

What would your clients think if they knew that work on their cases was being outsourced to India? Do they have any idea how close you are to being exposed by being placed into a mass mailing?

And if you think they answer is, “Hey, the clients won’t mind!”, then why not put it on your website?

Here’s the tagline I like: Think humanize, not industrialize.

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)