Let's Do Away With Captive Doctors

There are basically two categories of doctors involved in the world of ERISA disability claims – the treating doctor who has examined and tried to cure the claimant, and the expert witness doctor who may or may not have even seen the claimant and whose job it is to give evidence for one side or the other in the matter. 

Which category of physician would one expect to have a better handle on a person’s medical condition? 

This issue has been brought to the fore by a recent article in the NY Times describing the activities of Dr. William B. Barr who is often called upon by the Manhattan District Attorney’s office to testify in criminal cases where a defendant’s mental state at the time of a criminal incident is at issue.

Dr. Barr has testified in more than 100 criminal cases concerning the mental health of defendants, according to the Times, and in just about every one of them on the side of the prosecution.  Obviously, his testimony rarely helps the defendant. 

We have pointed out before that this “gamesmanship” played  by both prosecution and defense in criminal law and in injury cases is many times just a sham which injures litigants and lowers public faith in the courts.

It is time to try a new system, one which attempts to take physician self-interest in civil and criminal litigation out of the equation.  One way of doing this was suggested here just a few weeks ago.   Another suggestion is to establish a phalanx of medical experts, half chosen by plaintiff’s bar and half by defense.  The physicians selected should be categorized by specialty and listed with court clerks.

When an expert physician’s opinion is needed by either party, the next doctor on that specialty list should be named.  The claimant should be examined and reported on by that doctor. 

Expenses of the exam should be paid by the party calling for it.  With such a system, there is no way for any physician to receive so much business from an insurance company or plaintiff’s lawyer that the doctor’s judgment might be clouded.

There would be no prohibition against either party obtaining additional expert testimony if desired, but such testimony would be at that party’ expense.  And, a court or a jury would always be aware of the court-named medical expert’s unbiased opinion in the matter when it came time to make the decision.

The additional opinion bought and paid for by one side or the other would be evaluated as just that – an opinion bought and paid for by an interested party.

There are many categories of law in which expert medical testimony is required: personal injury, criminal, medical malpractice, workman’s comp and ERISA disability, to name a few.  In most of these areas of law, the claim is defended by an insurance company.  As one would expect, insurance companies build stables of doctors whose opinions lean in their favor. 

Plaintiff’s attorneys who do a lot of work in any of these areas are also known to favor doctor experts who would favor plaintiff’s side.  Many of these plaintiff and defendant physicians earn a good part of their incomes from these sources. 

So, it obvious that these doctors have good reason to find evidence that will please their employer and keep that income rolling in.

So, let’s get real.  Litigation involves trying to solve basic human problems.  It is not a “game” where the party with the biggest wallet should necessarily win.



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.