December 2013 Defense Medical Exam Update

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New York State Supreme Court, Queens County, finally calls out a doctor for lying while testifying about the substance of a DME (defense medical exam) or, as the insurance industry calls them, an IME (independent medical exam).

This last spring Judge Duane Hart unsealed a record that proved a New York City orthopod, and a “frequent flyer” in the DME world, likely perjured himself when testifying about one of his DME’s.  Dr. Michael J. Katz was routinely hired by insurance companies to perform these DME’s and would perform up to 1,000 a year and make over $1 million a year from the insurance companies.

The insurance lobby routinely calls these examinations IME’s or Independent Medical Examinations but, there is nothing independent about them.  The insurance company or the defense attorney hires the doctor they deem worthy of the business, not a judge or any other “independent” party.  As a result, some doctors become accustomed to this work, and the money it brings with it, so they take on more and more exams.  Routinely, the doctor will examine an injured party for a few minutes and then pen a report that contradicts the person’s treating physician (who is simply trying to make them better).  If the doctors write reports and testify the way the insurance companies want them to, they get hired again.  Usually these reports say that the injuries are pre-existing or not causally related to the incident that injured the person.  Sometimes the reports in two different cases are identical and appear to only have the names changed.  Importantly, there is no stenographer or any record of the examination taken, other than the doctor and the injured party.  After this case, that may change.

In Bermejo v. Amsterdam & 76th Assoc., LLC, et. al, Index No. 23985/09 [Queens County 2013], Dr. Katz testified that he spent 10-20 minutes examining Manuel Bermejo, a construction worker who fell from a scaffold and shattered his ankle.  Unfortunately for him, the exam was recorded and lasted only 1 minute and 56 seconds, a long way from 10 – 20 minutes.  Due to his brevity, it was impossible for him to actually perform all of the tests he claimed he performed in his report.

Notably, this recording was not disclosed to the defense in this case because Dr. Katz was a non-party witness and the only way it could be used was if Dr. Katz lied.  When Dr. Katz obliged and told lied under oath, plaintiff was then able to use the video.  Ultimately, Judge Hart declared a mistrial after 2-3 weeks of trial due to the fabrication and issues related to the failure to disclose the video before trial.

Judge Hart understands what is happening in litigation, at one point he asked “How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand? How do people like me, people in this building, people that wear black robes send a message to them that they cannot condone perjury?”

Despite all the admonitions thus far from Justice Hart the matter remains open as Dr. Michael Katz is still conducting medical-legal examinations and has refused to retire from these activities.  Justice Hart had offered him the option of bowing out of the business and he declined. Thereafter the court ordered a full transcript, intending to send the matter to the Administrative Judge for a civil contempt hearing and send the matter to the District Attorney with a recommendation that they explore a perjury prosecution.

You may think this type of thing only goes on downstate, for example another New York orthopedist Dr. Robert Israel has been sanctioned for his conduct in DME’s but, there are doctors in western New York that make just as much money doing DME’s.

The irony of all of this is that the insurance carrier’s always claimed that DME’s were necessary to prevent “insurance fraud” but, as it turns out they were the ones using DME’s to commit insurance fraud!!!