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.

The 2-Sided ERISA "Cheat"

One thing that has really galled us through our years practicing ERISA law is the way many courts seemed to assume that disabled ERISA claimants have a propensity to fake disabilities while ignoring the clear motivation for ERISA insurance companies to do the same.

A recent decision, Eisner v. The Prudential, 2014 WL 244365 N.D.Cal, opened the fallacy of this judicial tendency to the light of day, when it said:

“…Claimants have an incentive to claim symptoms of a disease they do not have in order to obtain undeserved disability benefits. But the claimants are not the only ones with an incentive to cheat. The plan with a conflict of interest also has a financial interest to cheat. Failing to pay out money owed based on a false statement of reasons for denying is cheating, every bit as much as making a false claim.”

Thankfully, this tendency has been moderating in the last few years, particularly since Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008). Glenn allowed claimant’s ERISA attorneys to dig a little deeper into the motives and methods insurance companies use to deny claims.

The endemic chicanery uncovered by claimant attorneys under the authority of Glenn,
has led many courts to question the bona fides of insurance company ERISA claim denials. These courts now require substantive proof before upholding an insurance company denial of benefits.

As a result of Glenn, courts learn more and more that just because an entity is big and in business, it should not be assumed that it is honorable and conducting itself in a manner in which its judgment should be more trustworthy than an individual party.

Employees are suspect because if they can successfully fake a disability under ERISA they can get 60% of their salary without having to work. But, insurance companies also have this “something for nothing” motivation to deny valid claims. They get “something for nothing” when they wrongfully collect premiums but deny claims and pocket benefits which rightfully belong to insureds.

While employees act individually when cheating, insurance companies organize their efforts. They have been known to tie how much they pay an employee to the number of claims the employee denies, use doctors who depend for their living solely on the insurer to “independently” examine claimants, and to demand claimants provide medical proof that is impossible to provide, according to medical authorities.

This organized conduct on the part of insurance companies is the reason we object to courts giving companies a “pass” while scrutinizing employee claims with a magnifying glass. Now, with Glenn, the truth is becoming apparent and courts are taking a good, hard look at the bases for insurance denials.

Thank you Glenn.




Insurance Noses And Faces


Insurance companies, with their inflexible “no pay, no way” attitude towards disability income benefits, are cutting off their own nose to spite their face. Insurers have long ago adopted the basic philosophy that claimants are malingerers and cheaters and not really people who are hurting

Support for this view was recently revived by a guy named Rabbat who finally gave up his heroics and applied for long term disability benefits. Naturally, his disability insurance carrier turned him down despite strong evidence that he was telling the truth about his disability. See Rabbat v. Standard Insurance Company, 2012 WL 4504557 (D. Or.).

Mr. Rabbat had been afflicted with Familial Mediterranean Fever since his early teens. This rare affliction attacks the joints making them very, very painful. It is also a condition which worsens over time.

He went to work for the plan employer in 2005 and worked through his pain until October, 2008, when he went on short term disability. In November, 2008, he applied for long term benefits.

Despite Rabbat’s doctors, who had treated him for years, reporting on his battle with his disease, Standard turned him down because its flunky doctors, who had never laid eyes on Mr. Rabbat, said he could work. The court, which had no conflict of interest, found for Mr. Rabbat.

Why we say insurance companies, in fighting cases similar to Mr. Rabbat’s, are cutting off their nose to spite their face is that there are probably tens of thousands of people at work right now who could rightfully claim disability benefits but who choose to work through the day.

Standard’s attitude in the Rabbat case clearly discourages this exemplary type of behavior. Using their commendable behavior against them to deny benefits to employees when they are finally forced to give in, discourages others from trying to work through their disability.
We have written about this before
Stiff Upper Lip.

What insurance companies overlook is that every day a person works, even though disabled, is another day the insurer did not have to pay benefits. When you multiply these days by tens of thousands, it comes to a tidy sum, even for an insurance company.

The 7th Circuit Court of Appeals said it best in another case in which an employee claimed to have fought through a disability for a long time before giving in, Hawkins v. First Union Corp., 326 F.3d 914,(7th Cir,2003):

“…A desperate person might force himself to work despite an illness that everyone agreed was totally disabling... Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. Hawkins may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working…”

Insurance companies should give such hardy souls a medal rather than a hard time!





The Client-Patient Comes First!

Although doctors and lawyers handling an injury claim for a client-patient should always cooperate, disability income insurance claimants have a most pressing need for ongoing and speedy communication among their medical experts and attorneys. Disability income claims require medical reports that meet special standards and must be filed within strict time limits.

In view of these constraints, it is amazing how many doctors and lawyers can’t seem to get along.

It’s common knowledge that lawyers and doctors, as a class, generally don’t like each other. Each profession has had some bad experiences in dealing with the other, particularly in the area of medical malpractice lawsuits, but that’s no reason to shortchange a claimant-patient, locked in battle with an insurance company. By not helping each other to understand the important parts of a claimant’s case, shortchanging is exactly what the professionals may be doing to their client-patient’s disability income case

Does anyone doubt that the lawyers and doctors, working on the defense for the insurance company, coordinate their efforts to try to put their best foot forward for their client? Why shouldn’t a claimant’s doctors and lawyers be able to work together to present the best case for their client?

The basic problem seems to be that the claimant’s doctor and lawyer are not employed and paid by a single entity, as are the professionals hired by the insurer to defend against the claim. Without this unitary control exercised by the insurer, who is paying them, professionals are subject to their past experiences and prejudices and, sometimes, one profession finds it difficult to cooperate with the other.

It can reasonably argued that an attorney who has spent the best part of his or her professional life reading and interpreting insurance policy language and dealing with insurance companies, is best qualified to know what is important and necessary to include in a disability income claim submission to the insurer.

On the other hand, doctors are clearly best qualified to make medical and psychiatric findings and to produce the necessary medical reports required by insurance companies.

With the expertise of each profession clearly established, and both having the same client-patient, why shouldn’t they be able to work together to present their client-patient’s claim in the best light?

Both professionals should want to do the best for their client-patients. In actuality, they don’t many times, because they view the needs of the case from their own medical or legal standpoint only and do not understand the other profession’s view.

Doctors and lawyers seem to have no patience or inclination to take the time to understand or to trust the judgment of the other profession. Because of this, client-patients do not, in some cases, get the full benefit of the professional knowledge and experience they need

Both professions should understand that the other is busy and overwhelmed with paperwork. Extra time is not usually available to either. Any unnecessary request, one to the other, should be avoided.

But, in the interests of the client-patient, they must communicate. Mistakes or ambiguities in a medical record or report can be fatal to a disability income claim and leave a patient to face a handicapped future without income for the patient or the family.

The attorney must take the time to explain clearly to the doctor what questions the medical or psychiatric reports must answer to meet the requirements of the patient’s insurance policy.

If the lawyer and the doctor retained by the claimant to press his case before the insurer don’t do their jobs properly, who will do it?

If the doctor and the lawyer approach each other in a considerate, respectful manner, there should be no problem in doing their jobs for the client-patient in a professional way. If the doctor and lawyer approach each other with a chip on their shoulder, there is a big problem.

The disability insurance client-patient has enough problems dealing with the insurance company. That’s why the professionals were retained. It is incumbent upon them to drop the “attitude”, if any, and get on with the work they were hired for.