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.