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An increasing issue in personal injury litigation is insurance companies’ use of hired guns to give opinions that our clients aren’t hurt. Sometimes the hired guns simply review the medical records and then give opinions that despite the evidence in the records our clients aren’t hurt as bad as the clients say, and sometimes the insurance companies ask for an opportunity to have our clients examined by their own hired gun doctors so the hired guns can then testify that our clients aren’t really hurt. Insurance companies and defense lawyers try to hide the nature of these exams by calling them "independent medical exams." But that name borders on fraud; there’s nothing independent about these exams. Unlike treating physicians, whose primary responsibility is trying to make sure the patient heals, the sole purpose of these hired guns is to minimize payments to injured persons.

For a long time, those of us that practice personal injury law have known the true nature of these exams, but the exams haven’t received a lot of press. Maybe the tide is turning. Monday’s issue of the New York Times had a great expose on the use of "independent" medical exams to reduce payments due New York worker’s compensation claimants. The Times reviewed several cases and interviewed doctors involved in the process, and the results would probably shock people not used to dealing with this on an everyday basis.

While I won’t set out the full article, part of the Times’ research compared videotapes of the exams with the eventual reports that were created. They noted time and time again where "independent" doctors noted on the videotapes that the victims were injured only to have reports show up saying the victim’s injuries were exaggerated.

The practice was criticized by all involved. The new interim medical director for the NY worker’s compensation board, a respected physician at Mt Sinai Medical Center, stated:

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 you can do in medicine without treating. This ain’t one of them.

Another doctor involved in the process used to certify these physicians noted:

Basically, if you haven’t murdered anyone and you have a medical license, you get certified. It’s clearly a nice way to semiretire.

And clearly, if the physicians provide opinions adverse to the insurance companies, they know that they won’t be hired again. It’s part of the game. Dr. Hershel Samuels, one of the physicians the subject of the expose, stated:

If you did a truly pure report, 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.

While the article focused on the New York worker’s comp system, the same problems exist here in Texas personal injury circles. The doctors are hired, and they all know the rules of the game. Too many findings that victims are injured, and they’re not hired again.

Sometimes, the problem goes even further. I recently deposed a doctor who was hired by a defendant through a third party firm. The defendant hired the third party and then the third party hired the doc. The doc prepared a long report after a quick review of my client’s records, and a major part of the report was a criticism of the charges from each of my client’s medical providers. At the deposition, the doctor admitted that he didn’t have a clue about the charges, but that the company that hired him had filled in that part of the report for him.

So what’s the remedy? First, the New York Times article noted that the best defense is attempting to videotape the exams. When our clients are referred to these defense exams, we push to have them videotaped. The video is the best way to keep the doctors honest in these situations.

The next remedy is collaboration. One of the biggest benefits of the Texas Trial Lawyer’s Association, our state-wide group of lawyers who regularly represent plaintiffs, is the ability to collaborate with one another. If my client is referred to an IME doc, I can request information from lawyers around the state. We may be able to get copies of other reports, depositions, etc. You’d be surprised how many docs prepare reports for different patients that are identical to one another. When you hire a personal injury attorney, I strongly urge you to ask the attorney whether they’re active members of TTLA. That collaboration is important.

I encourage you to read the article and leave your thoughts.

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