DOCTORS FOR SALE

[Guest guest]

" Corporate Crimefighters of America at Zinester.com "

<response@...>

Willamette Week http://www.wweek.com/ Cover Story - November 13, 1996

DOCTORS FOR SALE

You can hire a medical expert who will testify to almost anything BY

CHRIS LYDGATE clydgate@...

The day before his two-week vacation, Joe Gallardo, a technician at

Fujitsu Microelectronic's in Gresham, threw out his back lifting a

150-pound heat exchanger.

It was the sort of injury dreaded by everyone who works with his

hands. Gallardo, 56, had to lie down for 90 minutes before he could

finish his shift. The next day, he and his wife set off in their new

motor home down to Bakersfield, Calif., hoping the pain would subside.

The journey should have taken 17 hours; instead it took three days.

The pain in his lower back was so insistent that Gallardo couldn't

drive more than 50 miles at a stretch.

Please support our cause if you feel this is important work. It is

not easy to expose a multibillion dollar industry or help its victims

with little resources. Send donations or subscription payment to:

Mooney

PMB # 106

4495-304 Roosevelt Blvd

ville, FL 32210-3381

OR Via Paypal at:

https://www.paypal.com/affil/pal=cybervigilearthlink (DOT) net

Jim Mooney, webmaster:

www.micethatroar.com

www.corporatecrimefighters.com

UNUM'S SECRET " DESTROYED " CLAIMS MANUALS NOW AVAILABLE - Email

manuals@... for details.

THE UNFINISHED TASK

" Behind the ostensible government sits enthroned an invisible

government owing no allegiance and acknowledging no responsibility to

the people. To destroy this invisible government, to befoul the

unholy alliance between corrupt business and corrupt politics is the

first task of the statesmanship of the day. " Theodore Roosevelt,

April 19, 1906

In the next three weeks, Gallardo's troubles worsened. He began to

have recurrent pain in his legs. When he returned from Bakersfield,

he saw a doctor who suspected a slipped disk, a diagnosis confirmed

by an MRI scan. Two months later Gallardo underwent back surgery at

Mount Hood Medical Center.

At first, the operation seemed to be a success, and Gallardo returned

to work. But his symptoms came back, including the leg pain. " The

accident put me on kind of a downward spiral, " Gallardo

says, " because I can't do my job to my full potential. "

Gallardo's ongoing medical woes are a cakewalk compared to the legal

fallout from his injury. The accident occurred three years ago, yet

his case is still grinding through the courts, because Fujitsu says

his injury, isn't work-related.

In Oregon, workplace injuries are insured through the workers-

compensation system. After his injury, Gallardo filed a claim for his

lost wages and medical expenses--all standard practice. But Fujitsu

wanted a second opinion--also standard practice. They asked him-to

see an " independent " neurologist by the name of Dr. .

examined Gallardo and concluded that his pain had nothing to

do with the " alleged injury; " as put it in his report. Rather,

after 30 years of labor, Gallardo's spine was showing signs of wear

and tear: He had backaches from time to time, occasional arthritis.

According to , Gallardo's pain was not the product of any

accident. It was just a matter of an older man's back wearing out.

The legal consequence of 's theory: Fujitsu didn't owe Gallardo

a red cent.

Confused? You are about to descend into the netherworld of injury

litigation, a treacherous no-man's-land between medicine and law,

where every victim is a suspect, every twinge has a price tag and

every the theory, however fantastic, can flourish if only it is

fertilized by money.

Injury litigation has evolved into fantastic complexity. Disputes

involving auto injuries, accidents, negligence and malpractice are

all fought in the civil courts. Workplace injuries are litigated in

the workers-compensation system. Dockyard and railway accidents have

their own separate system, and product-liability suits such as breast-

implant cases are often fought in federal court.

Each venue is a world unto itself, a legal ecosystem with its own

courts and judges, its own rules and procedures--even its own sub-

species of lawyers. But in these proceedings, the basic conflict is

the same: the injured party (the plaintiff) is trying to get money

from the party it says is responsible (the defendant and its

insurance company).

Workers-comp claims have dropped steadily ever since the so-called

reforms of 1990, which made claims tougher to prove. In 1994, there

were 31,000 disabling claims statewide, down from 39,000 in 1989. (A

disabling claim involves a claim of temporary or permanent disability

stemming from a workplace accident.) This equation has spawned a

multimillion-dollar business. In Multnomah County alone, millions of

dollars were paid out last year in court contest, fueling an army of

lawyers, paralegals, researchers, claims adjustors and assorted paper

shufflers.

Perhaps the most intriguing denizens of the injury business are the

doctors who provide expert medical opinions for use in the courtroom.

In Portland, half a dozen firms have sprung up in the last decade

specializing- in what are known as " independent medical exams, " or

IMEs.

These exams are supposed to provide an impartial second opinion, a

way to inject a dose of medical reality into the realm of legal

blather.

Many doctors do IMEs from time to time and occasionally wind up

testifying in court. For some, it's an interesting sideline, an

intellectual challenge.

For other doctors, however, it becomes more than a sideline.

In 1986, performed an MRI on a patient in a workers-comp case,

concluding that the symptoms were psychological and there was no

brain damage. The case concerned a notoriously complex and

controversial inner-ear disorder known as perl-lymph fistula. In a

devastating videotaped cross-examination, plaintiffs??? attorney

Gerry Dobie handed a model of the inner ear and asked him to

identify parts of it. Holding the various bits of the model before

him like a boy with a defective Lego set, was unable to do so.

IME???s can be more profitable than seeing patients. Doctors

typically charge around $150 an hour to do the exam. But that's just

the beginning: Besides the exam, they may spend several hours

reviewing the medical records, writing the report or testifying in

court. A single

case can be worth up to $2,000.

Doing legal work can be so lucrative that some doctors do it full-

time. " It's easy money, " says one doctor who refused to be

identified. " Let???s face it. No calls in the middle of the night.

You don't have lives in your hands. You get away from the hassles of

medicine. "

In an era where doctors face falling incomes, rising malpractice

insurance costs and the tedious paperwork of managed care, such an

option has become even more tempting, especially for older physicians

looking for a way to " slow down. "

But there's a disturbing corollary. As doctors come to depend on IMEs

for their income, they may confront an old adage: He who pays the

piper calls the tune.

" I have no problem with these doctors making as much money as they

can, " Gallardo's attorney, Doug Swanson, says. " It's when they insist

that they are impartial that gets my hackles up. I don't care who you

are--that amount of money is bound to influence your opinion. "

Lawyers for insurance companies point out that the hypocrisy abounds

on both sides of the bar. " In any given case, you've got a Dr. Yes

and a Dr. No, " one lawyer says. " It's just soundbite medicine. "

There's nothing particularly new about doctors testifying in the

courtroom. What's new is the emergence of a professional caste of

expert-witness physicians. What???s remarkable about this business is

that so few people know it exists. Its effectiveness depends somewhat

on keeping its nuts and bolts out of sight, like the man behind the

curtain in The Wizard of Oz. Doctors are convincing only when they're

perceived as scientists or healers-not businessmen.

Dr. , 58, doesn't see many patients these days. But that

doesn't mean he's not busy.

declined to be interviewed by WW, but during a 1993 cross-

examination he estimated his income from IMEs at between $150,000 and

$200,000. By his own estimate, he performs roughly 500 IMEs and

testifies 20-30 times each year, besides doing numerous record

reviews.

" Dr. 's testimony and written reports are the product of an

expert witness whose mind is made up well in advance of learning the

facts. " --- Schultz graduated from the University of

Oregon medical school in 1964. He joined the Air Force, then

completed his residency in neurology at Legacy Good Samaritan

Hospital. In 1971 he joined the well-respected Neurologic Clinic,

where he practiced until 1990, when he took up consulting work full-

time. For several years, he ran a muscular dystrophy clinic two

mornings a month, but gave it up in July 1994.

It's an impressive resume. What it doesn't show is that ever since he

began testifying more than 10 years ago, has done the vast

bulk of his consulting work--98 percent by his own account-for

insurance companies and employers.

is a prime example of what happens to doctors who get into

this line of work. They tend to be cast either as Champions of the

Afflicted or, as in 's case, Defenders of the Faith. In other

words, they develop reputations as patient-oriented or defense-

oriented.

Among plaintiffs??? lawyers, is legendary. He can usually be

relied on, they say, to testify that illness is probably caused by

pre-existing conditions or that the patient's symptoms are

exaggerated.

The public still holds medical doctors in high esteem, according to

the Gallup Poll, which tracks popular perceptions of professions.

Fifty-four percent of Americans give doctors high marks for honesty

and integrity, ranking them above engineers and below clergy. At the

other end of the scale, only 16 percent of Americans trust lawyers,

putting them below newspaper reporters (20 percent) but above

congressmen (10 percent). It???s no surprise that a doctor like

would infuriate plaintiffs??? lawyers. But employers and

insurance companies like , and he has plenty of work. At the

same time, some judges have been less than impressed with 's

testimony.

The referree in the Gallardo case, Schultz, said: " Dr.

's testimony and written reports are the product of an expert

witness whose mind is made up well in advance of learning the facts

and who after learning the facts, nonetheless disputes them. "

In December 1993, testified in another case, involving

Kennedy, a longshoreman who injured his lower back while lugging on a

wrench. was hired by the defense--the Port of Portland--to

review Kennedy???s medical records and issue an opinion.

The Port claimed that Kennedy???s pain was actually the result of a

long history of of back trouble and was not related to the accident.

This was spelled out in a statement given to when he reviewed

the records.

's testimony the next day was eerily similar to the Ports

statement. The parallel was so striking that administrative law Judge

Halpern wrote: " It seems to be that Dr. ???s testimony

in this case should be viewed principally as a forensic exercise

designed to defeat a claim, rather than as a reasoned medical

judgement. " Halpen ruled in favor of the longshoreman.

is by no means the only local doctor who has forged a career

doing IMEs or a reputation for being friendly to the insurance

industry. Their ranks include:

Glass, psychiatrist. Psychiatrists are often called to testify

in injury cases to determine if the claimant???s perceived pain or

disability is " all in his head. " According to court transcripts,

Glass spends 80 percent of his time doing IMEs, the " overwhelming

majority " for insurance companies. He charges $150 an hour to write

reports, which take him anywhere from 10-20 hours, and writes roughly

15 reports a month. He grossed $300,000 in 1994. WW was not able to

contact Glass, but in depositions, he has rejected suggestions that

he???s not objective, stating: " The insurance companies never tell me

what I'm supposed to say. "

ce Binder, psychologist. A senior researcher at the Veterans

Administration, Binder has developed a special technique, known as

the Portland Digit Recognition Test, to root out malingering in head-

injury cases. Whiplash victims are asked to memorize number sequences

while the tester tries to distract them. Binder wouldn't talk to WW,

but according to his published research, malingerers tend to do worse

on the test than genuine cases. But even if you pass the test. Binder

says, you could still be faking it. Either way, it makes for a

comfortable income: According to court transcripts, Binder earns

$180,000 a year in consulting, almost entirely for insurance

companies. (Psychologists aren't really doctors, but we thought we'd

include him anyway.)

Fuller, orthopedic surgeon. Trained at s Hopkins, Fuller

hasn't done surgery in almost 10 years, but he's got a good excuse--

back and wrist problems prevent him from wielding the scalpel. His

professional income now comes exclusively from consulting, 95 percent

of it for insurance companies. According to court records, Fuller

performs roughly 20-24 IMEs a week, charging $400 each. He also owns

Impartial Medical Opinions Inc. ( " Body Shops " ). Fuller didn't return

WW???s calls.

, hand surgeon. is by all accounts a good surgeon

who has a significant private practice. But he's also a favorite of

insurance lawyers because of his conservative view of carpal tunnel

syndrome--he insists it is seldom, if ever, caused by repetitive

motion in the workplace. Rather, believes that carpal tunnel

has more to do with an inherited predisposition. WW was not able to

contact him.

The fact that a doctor gets a lot of money from insurance companies

doesn't prove anything, but it does suggest a certain bias--which is

not lost on plaintiffs' lawyers.

Even defense lawyers given the guarantee of anonymity, admit there's

nothing independent about an IME. " It???s a real problem, " one lawyer

says. " This is an industry where people are totally into developing

whatever sells best to a jury. " To plaintiffs???

attorneys, " insurance doctors " are a despicable breed. According to

one plaintiffs??? advocate, " Some of these people would say the Pope

is a malinger-er. " When one member of the plaintiffs??? bar was

informed by phone that WW was doing an article about medical

witnesses who testify for insurance companies, he banged on the table

with glee. " The whores! " he bellowed into the receiver. " You want to

write about the whores! "

This indignation is a byproduct of the barbed-wire mentality of

injury litigation. " It???s a battle out there, " one plaintiffs'

lawyer says, " between the little guy--the injured worker, the

accident victim--and the insurance companies. "

It's also fueled by envy: In most cases, plaintiffs' lawyers do not

choose their client's doctor, whereas the insurance company can

select any doctor it likes for the IME.

Plaintiffs' attorneys do sometimes refer their clients to doctors for

second opinions. In such cases, they tend to select doctors they hope

will be sympathetic. They include:

Kip Kemple, rheumatologist. Kemple is one of a handful of doctors in

Oregon who is convinced that breast implants can cause autoimmune

disease. He often sees clients referred to him by breast-implant law

firm and Troutwine.

Grimm, neurologist Grimm is an expert in " inner ear concussion

syndrome.' Most of his work is in private practice, but he does show

up for plaintiffs more than many of his colleagues.

The emergence of a professional class of medical experts has pushed

lawyers on the other side of the courtroom to find new ways to attack

them. In fact, the bar maintains an intelligence network of sorts on

expert witnesses, swapping depositions and sharing information. The

Oregon Trial Lawyers Association keeps a database of expert

depositions so their members can zero in on inconsistencies or

embarrassing incidents. " It gets nasty, " one expert witness

says. " They try to paint you as an evil, money-grubbing hack. They'll

find out every little thing you ever said-anything's fair game for

destroying your credibility. "

Because court testimony is all sworn, once a doctor says something on

the stand, he cannot later take it back--to say two different things

would be perjury. The longer a doctor has been in the business, the

longer his paper trail grows and the easier he becomes to

discredit. " Eventually, they get used up, " plaintiffs' attorney Elden

Rosenthal says.

In the Middle Ages, the Catholic church held trials to determine if

new saints should be canonized. These hearings featured an attorney

known as the Defender of the Faith, whose job was to poke holes in

the saint's cue and make sure frauds weren't enshrined in the

calendar. That's not to say every doctor who's a regular in the

courtroom is a scoundrel. Many, even most, do their best to act with

integrity. " I'm a doctor first, " says psychiatrist Ron Turco, one of

few testifying physicians who is highly regarded by lawyers on both

sides of the bar. " Whoever hires me, that's their problem. "

" Yes, there are some doctors who will always side with the defense, "

says insurance lawyer and state Rep. Mannix. " And there are

others who will call it as they see it. But who's forcing them to do

this? We are! We're enticing these folks with incredible fees. If

there's any prostitution in the medical profession, the lawyers are

the pimps! We dragged them into it--they've become a necessary evil

in our litigious society. "

When they allow themselves to become polarized and biased, doctors

betray the dispassionate scientific principles they were schooled in

and adopt the heat-seeking logic of the legal world, where

conclusions come first and arguments are constructed later. All of

which risks tarnishing the currency that sets them apart from the

legal profession--the fact that the public still trusts them.

What happens when busy lawyers don't have time to track down busy

doctors? Enter the middlemen. Portland has several consulting firms

that, for a handsome fee, schedule independent medical exams (IMEs)

for harried lawyers.

It works like this: If you get seriously hurt on the job or in a car

crash, the insurance company will send you to one of these firms,

where you will be examined by an " independent " doctor.

IME companies reject the notion that their doctors are in any way

meretricious, and doctors, too, deny the charge. But a glance through

their promotional literature could lead to some doubts. Here's a

partial list of local IME shops:

Medical Consultants Northwest

Based in Seattle, MCN now has offices in Washington, Oregon,

Minnesota and Illinois. Its local operation is on Southwest Greenburg

Road in Tigard. MCN???s glossy brochures emphasize accuracy and

thoroughness, but internal documents suggest that service has crossed

the line into servility. MCN publishes a quarterly newsletter for its

consulting doctors, replete with tips for writing reports. In a

recent issue, MCN advised: " When giving a diagnosis it helps if you

indicate that the patient is medically stationary and that the

condition is not related to a motor vehicle accident, etc. "

Columbia Medical Consultants Inc Headquartered near the Convention

Center with satellite offices in Salem, Bend and Vancouver, Wash.,

CMC recently lured former SAIF top doc Strukel to its ranks.

Slick sales material boasts that CMC's doctors will always call the

insurance company for consultation before dictating an IME report.

Company representatives deny that this has anything to do with

doctoring reports. " If we thought we had a physician who would not

provide an independent exam, we would not use that doctor, "

administrative director Higginbotham says. " Our physicians are

going to make judgments based on objective findings. They aren't

getting direction from the claims people. "

Impartial Medical 0pinions Inc Located in Lake Oswego, this outfit is

owned by orthopedist Fuller. According to court transcripts,

the firm grossed $850,000 in 1994. Plaintiffs' advocates scoff at the

company???s name.

Orthopaedic Consultants Founded in 1974, this is one of the oldest

IME shops in the area. Though numbers fluctuate, there are 60 doctors

on the list, 25 to 30 of whom are used regularly. Company

representatives declined to give out patient volumes or gross

income. " It???s a very competitive field, " a receptionist said. " And

for some doctors it can be lucrative. But it's very hard work. "

Western Medical Consultants WMC, whose offices are located at

Southwest 10th Avenue and Columbia Street, offers a long list of

consulting doctors. One of its brochures explains the purpose of IMEs

to nervous patients. Considering that the vast majority of such exams

are done with the express purpose of weeding out dubious claims, the

pamphlet ends on a rather Orwellian note: " So relax. With your

cooperation, we can do our part to help you. " Thanks. Where's the IRS

when you need it? --CL