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.

"No-See-Um" Docs

It’s time litigants and the courts deal with the biased world of insurance company doctors who make diagnoses and reports about claimant disability conditions without ever seeing a live body.

This is today’s world of insurance company “examinations” with doctors who make their living from an insurance company or from a medical agency which makes its living from the insurer.

The U.S. Supreme Court recognized the problem in Metropolitan Life Insurance Company, et al      v. Glenn, 128 S. Ct. 2343 (2008), but there is a long way to go before there is any fairness in the procedure in disability income claims.

We are happy that the Supreme Court finally found that the way insurers get their medical information requires further scrutiny because of the rampant biases inherent in the process.

But, the system, having recognized the problem, should go to the heart of the matter much more quickly and with fewer road blocks. What the court in Glenn recognized is that there is a world of medicine which plays by self-interest rules rather than by the rules of the Hippocratic Oath, i.e.

Since insurance company MDs do not see the claimant in person, they feel they do not owe the ordinary patient-doctor duty to the claimant. These “no-see-um” physicians believe they can range far and wide with their “opinions”, buttering their bread on the side of the one who pays them – the insurance company.

Feeling thus relieved of the professional duty clearly owed a patient in making an examination and diagnosis which the patient will rely on in seeking treatment, insurance company “Independent Medical Examiners” give their imaginations free rein so as to arrive at a diagnosis of “no disability”, which is exactly what their employers, the insurance companies or the insurance companies’ puppet agencies, want.

There is no mystery about this. For many years, courts have allowed Insurers to rely on the reports and diagnoses of doctors who have never seen the patient. And as this trend became more entrenched, insurance companies went out and found MDs who did not practice medicine but who enjoyed reading other doctor’s work so they could naysay it and make loads of money doing so.

Although some courts have found that Glenn opens the door, via discovery, to claimants’ ability to find out the history of each doctor to determine a leaning or bias which might affect his or her opinion, it does not go far enough. It requires court permission to examine the physician’s expertise and inclination to lean in favor of the insurer.

Why not save the court (and the parties) a load of time by having the doctors who are being relied on in a matter provide a curriculum vitae and answers to a standardized questionnaire which will immediately apprise the court and the litigants of details to consider in arriving at a decision on the expert’s impartiality.

Such a system, with appropriate penalties for certifying falsely, would immediately give the court and the litigants a bird’s-eye view of the innate fairness with which the physician undertook the medical duties in the matter. Insight into the relationship of the MD to the claimant, the basis upon which the physician made the report or diagnosis, the ongoing business relationship of the physician with the insurance industry and company, the fee paid and the amount of fees paid in last few years, etc.

The questions seem fairly obvious and would not be a burden for a doctor to answer, especially if the doctor worked often in the disability field. It would not be difficult to propound such a questionnaire with 6 to 8 questions which would do the trick.

But, what a savings for the court and litigants to have the information up front and not have to go through the hearings on motions for interrogatories and all that that pretrial motion practice entails. Every one would have the important information at the start and could evaluate the balance of the evidence with that information in mind.

And, you know what? It wouldn’t surprise us if this sensible procedure led to a lot of insurers dealing much more reasonably with claims if they know that the “no-see-um” doctor defense was now out in the open for all to see.