For thirty years I have practiced as a New York Personal Injury Lawyer and try to explain to people, jurors and friends what it is like to try to navigate the courts and the New York Worker’s Compensation system to get your client taken care of. Finally, due to an investigative report by The New York Times, the public has a bird’s eye view into what we trial lawyers and worker’s compensation lawyers know…it is a difficult maze to navigate.
What I appreciated the most was the exposure of the “IME”, independent medical examination doctors. We plaintiff personal injury lawyers who deal with the same doctors and practices laugh at the phrase, IME. What is “independent” about a doctor who is paid hundreds of thousands of dollars per year to examine people and write reports regarding thier injuries when they know what the insurance company and their lawyers want to see and hear.
They want to hear, they are exaggerating, they are healed, they never got hurt in the first instance… it’s a preexisting problem, it’s degenerative, not traumatic. The doctors are well aware who butters their bread and that they get the repeat business because they write reports favorable to the insurance companies interests. Not all doctors do this but many do. In my experience, I dare say most. One of the doctors featured in the New York Times article has testified twice in personal injury cases against my clients and I had the opportunity to cross examine him.
Some of the things I have heard said by these doctors on the witness stand, under oath, are unbelievable. Like when a doctor said that his examination was independent because he didn’t even know the examination was related to a lawsuit. No kidding, I asked so how come on the top few lines of your report you mention that the person came to your office together with a representative from their attorney’s office.
Do all your patients who come to see you bring their lawyer along with them. I asked. He said you know how people are. I said… maybe in your practice. Or better yet was the time this same doctor testified about an x-ray of a person who fractured their ankle badly in several places and required surgical placement of a plate a screws to put the fracture back together, what doctors call ORIF…open reduction internal fixation. I was just trying to show the jury that when the fracture occurred you could see the bones were significantly separated, or what doctors call displaced, which is one way to gauge the severity of the trauma.
The more displacement, the more the possible need for surgery and probably the greater the trauma was. This doctor being shown the large dark triangular wedge in the ankle bone refused to even admit it was a fracture. Make no mistake, this was not a matter of opinion or interpretation. When an x-ray is taken the bone shows as white because it blocks the x ray from passing through to the film. Where there is no bone it shows dark, such as where the fracture or break in the bone is.
Any top doctor or for that matter a good personal injury lawyer, like I like to consider myself to be, who has seen a lot of x-rays can see an obvious fracture. It’s plain as day. But jurors are not experienced, so the doctor takes a shot at it, see if it flies. One time I cross examined an oncologist who was produced by the defense in a case of a man who fell of a building while doing construction worker and suffered what we call a wrongful death.
He was there to prove that the deceased plaintiff had an underlying cancer and wouldn’t have lived long anyway. So no biggie right!!!! The testimony was based on the autopsy that showed something that was consistent with a cancerous spot. But since he was dead no biopsy was done. I pointed out that with these types of lesions, the non-cancerous ones resemble the cancerous ones. He agreed but said that the autopsy doctor said it was cancerous. I said but since they look alike the only way to be sure was with a biopsy, right???
No… he said he has diagnosed cancer in people without a biopsy of the suspicious lesion. I asked him you tell LIVE people they have cancer without a biopsy. He said clearly and emphatically…YES. Another doosie was the orthopedist who wanted to make light of the fact that my clients, in the joint (intraarticular) fracture was not painful, even though it had become very arthritic.
So I took him through the explanation of how when bones break in the joint, the cartilage on the end of the bone breaks too (articular cartilage, like what you see on the end of leg of a chicken bone) and that this cartilage never heals as smoothly, evenly or with the same exact type body tissue as the original. Then as time goes on it rubs when the joint moves and it irritates the opposing surface [joints are made of bones that meet (like at the elbow or knee) at the joint and are supposed to be separated by cartilage and fluid to keep them moving smoothly and painlessly). but the rubbing goes on and on…. and voila… post traumatic osteoarthritis.
And when it rubs enough the cartilage eventually rubs away. Then the opposing bones are what we call “bone on bone” and that is painful. So painful that people with joints like that have them replaced or fused. But NOOOOO, this doctor said… the bones rub themselves smooth again!!!! Oh please I said say that one more time… I just have to hear that again… knowing there was a surgical nurse on the jury who had seen joint fusions and I knew would not believe that line of malarkey. There was even one orthopedist who testified that bone on bone isn’t necessarily painful. You can’t make this stuff up. The truth is far more astounding.