The Malpractice NONdeterrent

 Some doctors who examine for insurance companies feel free to play fast and loose with the truth when making reports on the condition of out of work employees because they do not have to fear malpractice claims.  Although fear of malpractice claims has been heavily overplayed by doctors and insurers in recent years, the plain fact is that insurance company doctors don’t have to fear malpractice claims since the person being examined is not the doctor’s patient.  There is no duty owing from the physician to the ERISA claimant being examined.  

An ordinary patient’s doctor has a duty to treat a patient in accord with the standards of the medical profession as practiced in the doctor’s geographic area.  Insurance company doctors do not treat the patient and so have no duty to him or her.

Owing no duty to the party being examined, the insurance doctor faces no malpractice threat if doctor’s report omits or misinterprets the patient’s condition.  What an incentive for insurers to hire and remunerate examining physicians who don’t mind playing fast and loose with the medical facts because doing so poses no danger to the doctor.

This major difference in the consequences of overlooking or misinterpreting the patient’s diagnosis or disability has led to insurers playing games with how they obtain medical information with which they contest ERISA claimant’s claims to being unable to perform the duties of their occupation. 

ERISA gives all of the advantage to the employer who in most cases hires an insurer to operate its ERISA plan. Although the employer is a highly interested party, ERISA gives the employer the right to make the “yes or no” decision on a claim.  And once that decision is made it stands as the law in the matter until it is overturned.

Fortunately, courts have just begun to take closer look at the insurers’ system for providing medical evidence in ERISA cases.  Many insurance companies have tried to appear to obtain independent medical opinions by retaining so-called independent medical services to examine and render medical evidence in ERISA matters.

The problem with this system is that it turns out that these so-called “independents” make most if not all of their fees from the same insurers.  How can they be considered “independent”?

Putting a fake third party entity in the mix is just an attempt to obscure the fact that the examining physician is actually working for the insurer.

This system may be good for insurance companies and those doctors who want to make easy money in examining claimants.

But, it’s bad for fairness and truth.

This Proof Is Not In The Pudding

The Social Security Administration has paved the way for the courts on the issue of “malingering” and we can only hope the courts follow its lead – and quickly. SSA evaluated so-called “symptom validity tests”, used by many insurance companies against disability income claimants and found the tests not worth the money they cost.

A “symptom validity test” consists of a series of written questions, the answers to which are supposed to indicate how well a patient is expressing his or her symptoms to the test giver. The answers to one particular section of the test is supposed to indicate whether the patient is “malingering”, according to the test publisher. (According to a Wikipedia entry, the author of this test worked mainly for insurance companies in personal injury cases).

Insurers deny on the basis of these tests alone. See, for example, Smith v Pension Committee of Johnson & Johnson, 2012 WL 1918822. Should the test indicate that an insured is out of the test’s “normal” range, the insurance company claimsthe insured is not cooperating and labels him or her a “malingerer”. We represented a client in just such a situation about a year ago.

Although the tests may be useful as one part of a battery of diagnostic tools when evaluating disability claimants, insurers are quick to jump on the “symptom validity test” results alone when it gives them ammunition to deny a claim.

For too many years, disability income insurance companies have used for-hire doctors who give “symptom validity tests” to knock out perfectly valid disability income claims on the ground that the claimant is “malingering”. What is overlooked many times by a court is that the for-hire doctors have more reason to fudge their reports than do the people being tested. Many of these doctors make hundreds of thousands of dollars a years working for insurance companies. How long do you think they would work for insurers if they found many claimants were entitled to benefits?

The SSA is heavily involved in determining the same issues disability income insurance companies have to determine – whether an illness or injury disables a person enough so that the person is unable to perform his or her occupation. The SSA doesn’t baby claimants. Only a third of original applications are approved.

So, when SSA says the “symptom validity test” is not helpful in determining malingering, why don’t insurance companies “own up” and do the same?

And, if the insurance companies won’t do it, why don’t the courts?