An article appearing in the New York Times put a spotlight on the shady world of “independent medical examinations”. These medical examinations often take place when auto insurance companies are required to pay medical benefits to their insured or when an injured worker requires medical care and treatment for their injuries. These insurance companies for years have used these “independent medical exams” to create loopholes that they may then exploit to avoid paying the medical benefits they owe under the terms of the insurance policies.
The article focused on some of the most disputed components of New York’s troubled workman’s compensation system. The article even referenced the videotaped examination of a Dr. Hershel Samuels who was an orthopedic surgeon hired by an insurance company to perform an exam. The video showed him stating “mild spasm bilaterally”, “the left cervical is tender”, and “tenderness to light palpation”. Yet, in the written and signed report he submitted to the New York State Worker’s Compensation Board, he cleared the driver for work and indicated that he found no back spasms and no tenderness to any of the worker’s muscle groups. Later in an interview when confronted with the inconsistency between the videotape of his exam and the report that he wrote, Dr. Herschel Samuels stated “If you did a truly pure report, you would 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”. This is an absolutely shocking quote from one of the doctors who gets paid to help insurance companies’ cut-off benefits to people who have legitimate medical claims.
Watch a video of Dr. Samuels exam and his reaction when confronted during a deposition with the inconsistencies between his exam and his written report:
Imagine at Dr. Samuels age how many injured folk he examined. Then imagine how many people he cheated out of necessary medical care and treatment through his lies and fraud. There should be a special place in hell for people like this.
The New York Times article went on to describe how they reviewed case files and medical records in addition to interviewing participants and their findings were that these “independent exams” are “routinely tilted to benefit insurers by minimizing or dismissing injuries”. Dr. Steven M. Levin, Co-Director of the Occupational Environmental Medicine at Mt. Sinai Medical Center is quoted as saying “You go in and sit there for a few minutes-and out comes a six page detailed exam that he never did. There are some noble things that you can do in medicine without treating. This ain’t one of them”.
The article then outlined a series of faults with the system in New York which, from my experience are similar to the faults in Michigan’s own system of independent medical examination. The New York Times article found:
(1) the practice of using independent medical examiners adds to the mistrust in the system which empowers an insuror to withhold medical treatment or stall a case. The folks being examined say that psychologically there is something particularly damaging about being dishonestly evaluated by a medical professional;
(2) a number of the “independent examiners” are older, semi-retired physicians who no longer practice or have actual patients that they treat. Both claimants and attorneys have successfully asserted that the memories and judgment of some of these elderly doctors are impaired by their age and frailties. Unfortunately these examiners do not need special training and only are required to have a state license and to be authorized in a specialty;
(3) many of these independent medical examiners see dozens of injured claimants per day. These appointments are typically booked by brokers who help the insurance companies find the appropriate “cut-off” doctors. These are doctors that are hired specifically to cut-off a claimant. Many of these brokers are not even registered with the state as required but here has been little enforcement of the rules;
(4) the use of independent medical examiners increases court and litigation costs as well as clogs up the court’s dockets as these workers are left with no choice but to file a lawsuit to contest the findings of the independent medical examiner and the cut-off by their insurance company.
Judge’s can and regularly do dismiss these exam findings. The New York Time is quoted as saying, “In fact, some lawyers and judges laugh when certain examiners names come up at the hearings”. The use of these laughable doctors ties up the claimants file for months, years and even decades and many workers go without necessary medical care and treatment without the medical benefits which have been cut-off by their insurance company.
These faults in this insurance claim system are chronic and widespread. The New York Times gave the example of a home health aide named Shu-Ying Xu. She injured her back, neck and legs when she was trying to stop a patient of hers from falling. She was sent to an independent examiner in October of 2006. This examiner was ordered by her insurance company to review her back, neck and leg injuries. Ms. Xu said the exam took just two minutes and Dr. Wayne Kerness failed to ask her a single question. His failure to ask a question was his undoing because when the doctor filed his report he said she spoke English. The fact of the matter is she doesn’t speak a word of English. Dr. Kerness also said she took no medications. Again, the fact of the matter is she was on nine different medications for her medical injuries. Dr. Kerness said that her disability was mild and that she could resume work. Apparently Dr. Kerness was unaware that she was in fact in debilitating pain and that the federal government through the Social Security Administration had already examined her and concluded that by its federal standards she was totally and completely disabled. The bottom line in Ms. Xu’s case is that when her matter came before the Judge, the Judge threw out the opinions of the doctor hired by the insurance company and ordered that Ms. Xu’s benefits should continue.
The funny thing is, if you go to Dr. Kerness’ website, where he is trolling for insurance companies to send him claimants for evaluation, he proclaims to the world that he everything other than incompentent. Check out these quotes:
Our Medical Director, Wayne Kerness, M.D. is a Board Certified Orthopedic Surgeon. He personally manages each of our client relationships through comprehensive needs analysis, evaluation requirements and reporting criteria. Backed by over 25 years of experience, QAM is uniquely positioned to cut through the most complicated medical histories and multiple injury claims to define the core issues from a medical-legal perspective. Our cogent analyses are derived through comprehensive research, intensive due diligence and the experience and insights to produce thoughtful, well-documented reports designed to withstand the scrutiny of our clients and the courts
QAM recognizes the importance of the role that the examinee plays in the evaluation process. Each exam is preceded by a phone call to confirm that the timing and location of the exam is understood. Prior to conducting the exam, the examinee is given an explanation of what the exam entails. Any questions or concerns are addressed to help alleviate any unnecessary stress or concerns. Then, a detailed history interview is conducted. Notes are meticulously taken during the history and actual exam.
What a joke…..
Personally, I think the best protection an injured claimant can have if they are sent to one of these exams is to tape the exam. My experience has been that few claimants do this and most of the medical examiners don’t like it. But without a video tape how would Ms. Houlder, a 63 year old woman who hurt her ankle and videotaped her exam by Dr. M. Pierre Rafiy, a 77 year old Long Island orthopedic surgeon, have contested the report. According to the New York Times, in the videotape Dr. Rafiy grasps Ms. Houlder’s right ankle and says it is swollen. In the written report he wrote that there was no swelling and no disability and that she could return to work. Later when deposed by Ms. Houlder’s attorney, he was shown the videotape and then began to backtrack blaming the inconsistency on a secretary’s mistake.
The bottom line is never let it come to your word versus the independent medical examiners. Many of them are incompetent, unethical, or both. Without a video recording of the examination performed, your insurance company may be able to cut you off from the medical benefits that you both need and deserve. There is a statutue in Michigan that gives the claimant certain rights when an exam is ordered prior to a lawsuit. There are other protections for claimants provided by Court Rule when the exam is ordered during litigation. These rules can give you the ability to balance the playing field when it comes to dealing with these unscrupulous doctors.
Mr. Smith has practiced as a trial attorney since graduating Notre Dame Law School in 1992. He has litigated cases across the country including cases from Ventura County, California to Middlesex County, New Jersey. He practices in both State and Federal courts.