Legal Division

Crossing the fine line…

Hiring an expert for your case can be a daunting experience. Finding just the right expert, one who not only has the requisite experience, but one who you can rely on to help you build your case, has become a vital part of the litigation package. 

And it’s expensive. When retaining an expert there is always the temptation to find one who agrees with your theory of the case. Whether Plaintiff or Defense, it’s hard to spend money for an expert opinion that comes in with less-than-enthusiastic support, or even worse, one whose opinion comes down on the other side. However, it’s also something to be wary of when your expert has a history of ‘overzealous support’.

There has to be some reasonable basis for the opinion. Everyone has their own particular “bent”. Experts are no different. Some are more likely to find malpractice than others, others only when it’s egregious, that’s just a part of life and practice. That’s reasonable. Frustrating at times, but reasonable.

What’s not reasonable is outright fraud. Much has been said about Insurance Fraud, and a lot of it is thinly-veiled attacks against Plaintiff suits; however, every equation has two sides and on this one, much less has been said about the Defense aspect. In personal injury suits, IME’s are big business. Insurance carriers require them. Worker’s Comp cases require them. And to call them “Independent” is a fiction that only those who deal with it on a regular basis recognize as a term of art rather than an accurate description of the procedure. They could more properly be called “Defense Medical Exams” as the doctor is not appointed by the court but is rather chosen by the Defense.

Case in point: Bermejo v Amsterdam.

Here, Queens Supreme Court Justice Duane Hart blasted Defense Expert Dr. Michael J. Katz for his part in perpetrating insurance fraud by committing perjury regarding an orthopedic exam he performed on a plaintiff.  In this case, the plaintiff injured his ankle in a work-place accident.  The original exam was performed and Dr. Katz testified that he had spent about 45 minutes during that exam. Now, the plaintiff’s paralegal who had been there disputed that, saying that the appointment lasted a total of about 10 minutes with only 3 or 4 minutes for the actual exam. When the time came for a second exam, plaintiff’s counsel, with his client’s permission, decided to secretly record the exam as a measure of protection against any attacks made by the doctor or defense counsel regarding the veracity. The doctor, in regular form, testified that on the second exam he had spent 10-20 minutes, when the video showed an exam of exactly one minute and 56 seconds.

Nothing like having your witness impeached by his own exam. Worse still, being stuck with him. Judge Hart declared a mistrial and set the new trial for September, putting everyone on notice that they would be there, no excuses, they would be there. Defendant’s counsel, scrambling to get this expert excluded and requesting a new IME, unsuccessfully argued that it’s own expert was now adverse to their case.

The unsympathetic remark from the bench was “That application is denied. You retained him. You are stuck with him.” “I am denying a new IME for any of the defendants. You called him. He lied. You are stuck with him.” 

Perhaps it was the audacity of defense associate’s statement “He said that I forced him to perjure himself because I was forcing him to tell the truth. There is an admission from your firm that he perjured himself. I forced him because you took an oath. You have to tell the truth.” “Yes we will have a finding forever more that a Justice of the Supreme Court of the state of New York said that he lied because he did it.”

and just for good measure, “Dr. Katz…has no further right to claim the 5^th Amendment.” “…if any party subpoenas him, he will come in. If he doesn’t come in, you are on notice. I will help him get in. Help means appropriate Sheriff.”

Lest we think this is a single aberration in an untarnished industry, groups such as IME Watchdog and IME Advocates have arisen to call attention to the issue and assist Plaintiff’s attorneys in protecting their clients from overzealous DME’s. Though the Court in this case didn’t need the assistance of outside groups when assigning blame.  “I can blame the attorneys and the carrier who hired him to do an IME on this case because they should have known what this guy was doing. They should have known. And again the man is making literally millions of dollars doing IME’s. Now, he gets caught lying. There is no other way to put it. He lied. There is no other way to make it nice. He said the IME took between 10 to 20 minutes. It took a minute and 56 seconds.”

There is a fine line between evaluation and advocacy. Crossing that line can have some very serious consequences. For Dr. Katz, those consequences are fairly dire. Judge Hart referred the matter (1) to the Queens Administrative Judge so that he could be held in civil contempt of court for perjury, (2) to the Queens District Attorney for prosecution for perjury, and just for good measure (3) to the Department of Health – Bureau of Professional Medical Conduct to evaluate his fitness to practice medicine (this final action was off the official record) and stated on the record:

“The man is basically out of the business of testifying.” “$500,000.00 to a million dollar income that he got doing IME’s and the like, that is over. As soon as the State finds out about it, he is not going to do any Worker’s Comp exams.”