The Tip Of The What?

What a surprise! A California newspaper investigated 567 disability insurance claims and found that insurance-sponsored IMEs resulted in denials in almost every case.

This is just the tip of the garbage heap (we hesitate to say “iceberg” because cold keeps things from stinking). The article clearly points out that disability claimants, particularly those covered by ERISA, are being hosed by insurance companies day in and day out at the very time when they are least able to fight back.

The article points out a basic failing of the “Independent Medical Examination” which lies at the root of a large percentage of the injustices inflicted upon claimants who are in desperate need of fair evaluations in claim determination.

In the case which triggered the investigation by the newspaper, a woman with degenerative disc disease was so afflicted with pain after surgery that her physician prescribed large doses of morphine for her. The woman applied to MetLife and the Social Security Administration for benefits. SSA granted her the benefits, but MetLife, after first starting payments, stopped because “…the medical information we have received does not support your inability to perform your duties as a client manager…”

An “Independent Medical Examiner”, paid by the insurance company, disagreed with both her treating specialist and the SSA and said she was fit to go back to work.

Although the case laws is rife with findings that IMEs are heavily tilted in favor of the insurers who pay for the exams, there is no mechanism in place to even this inherent disparity in medical “opinion”. Part of the problem is that while the treating doctor is subject to suit for malpractice if the diagnosis or treatment are medically negligent, an IME physician has no duty to the claimant because the IME examiner has no doctor-client relationship with the claimant. Therefore, the insurance company doctor has nothing to fear from the claimant even if the doctor conducts the examination blindfolded and with a closed mind as to the outcome.

Plaintiff lawyers practicing in the ERISA field have been aware of this unfair practice for years and years but have been unable to deal with it because of the ERISA precedent that shielded this practice from open view. The law required courts to give deference to the findings of ERISA plan administrators and precluded them from looking at how the decision was reached once the court found any reasonable basis upon which the administrator’s decision could be based.

To make a dent in this unfair IME bulldozer which continues to bury the hopes of so many heavily disabled employees, there must be a precedent which holds the IME physician legally accountable for misreporting a claimant’s condition to an insurance company. The problem is that under the law, the IME doctor owes no duty to the claimant and therefore is not accountable for negligence in reporting on the claimant’s condition.

It is time to stop this sham of “bought and sold” IMEs. Even if a claimant does not pay an IME doctor directly, courts should hold that since the claimant’s premium is helping to pay the doctor, a relationship is established which requires the doctor to use ordinary medical care in examining and reporting on a claimant’s condition.

This will give the IME physician something to think about other than the need to placate the insurance company so that he stay on the IME fee list, which in some cases provides most if not all of a doctor’s annual income.

It is time the Hippocratic Oath replaced cynical IME hypocrisy so that disabled ERISA claimants get a fair shake, as the ERISA law clearly intended them to.

 

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