Defense Medical Exams

One more Dr. caught saying inexplicable things in a deposition. In this case a testified that his in his opinion normal extension of the neck. He indicated that 35° is an accepted norm for cervical extension in medicine. The plaintiff’s lawyer then was confronted by a deposition with his previous testimony. In that deposition the doctor said that normal was 60°. This is significantly different from 35°. The doctor testified that if he is employed by an insurer to do an examination, and are the requirements, instead of the accepted norms, use the insurance company’s norms. For the testimony go here. I thought the Plaintiff’s lawyer did a great job in making the doctor look foolish. However, it is unfortunate that doctors are permitted to take such unreasonable positions in testimony and get away with it. In the case above, the defense claimed that the plaintiff was exaggerating her injuries. The defense was clearly exaggerating its case by using this testimony.

It is unclear to me why more doctors are not prosecuted. However, in New York, there seems to be several recent instances of it in the news. It may be that the practice is more publicized there. However, in my experience is very common for doctors to say things that I cannot possibly be true. I have numerous instances in my practices of situations where doctors’ testimony cannot be true. I personally met with a vocational expert about two weeks ago. We discussed the doctors in the St. Louis region who were known to say things that could not be true on, on a regular basis. She was no hired gun. She testifies equally for the plaintiff and defense.

In New York there are groups available to go to defense medical examinations (these are called independent medical examinations in Illinois) to monitor the doctor’s activities. For examples of these go here and here. If such a group exists in Illinois, I do not I have not found. I know of none downstate. I would love to see one start in this area.

Doctors who lie in depositions is a big problem in litigation. Many of them make hundreds of thousands if not millions doing defense medical exams. Unfortunately, their lies result in injured workers not being able to pay their weekly expenses to be able to support their families, despite the physicians oath that they will do no harm. It is a complete injustice to have doctors profiting by lying in order to deny legitimate claims.

In Bermejo v. New York City Health and Hospital Corporation, Dr. Katz testified that his examination of a injury victim, Manuel Bermejo, took 45 minutes and that his second exam took ten to twenty minutes. He also said he took numerous exams, which would have taken several minutes to conduct if he really did them. The lawyer for Mr. Bermejo asked if it was possible that it could have taken 2 or 3 minutes. Dr. Katz testified that “I don’t think that’s possible.” Unbeknownst to Dr. Katz the interview had been recorded. The video revealed that he spent 1 minute and 56 seconds on his examination. He did not perform all the exams he said he performed. The underlying case involved a bad ankle fracture. The victim had a fusion of the ankle joint as well as a shoulder injury which required surgery. A group known as IME Watchdog averaged his exam lengths. He averaged 4 minutes and 10 seconds per exam.

Judge Duane Hart sanctioned the defense firms involved for $10,000.00 each. The judge indicated that he wanted to sanction Dr. Katz and the insurance carrier. Because they were not parties to the lawsuit he could not sanction them. Justice Hart said, “You can probably hear my teeth grinding.”, because he was so mad at Dr. Katz and the insurance company. The judge later vacated the sanctions against the defense firm because he could not find that the defense firm knew about the fraud.

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