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Tim Smith
Tim Smith
Attorney • 231-946-0700

Neutral Observers During Insurance Company Neuropsychological Evaluations

4 comments

Last year I spent some time discussing the dangers surrounding "independent medical evaluations" by physicians that are employed by insurance companies. It has been my experience that these doctors are paid by the insurance companies to simply cut-off the benefits of insured. Statistically, I’ve seen doctors whose evaluations find the insured to be perfectly healthy on 90-95% of their exams. I’ve also seen companies here in Michigan that match doctors to the insurance company client, advertise their doctors as "cut-off" doctors; essentially ensuring that the insured will be found healthy and uninjured which allows the insurance company to deny benefits.

In cases where the insured has sustained a closed head injury or traumatic brain injury, the insurance companies neuropsychologist is typically hired to assess the insured and more often than not, find that they are malingering [making it all up], suffering from a pre-existing mental illness or perhaps depressed due to some non-accident related event.

When my clients are ordered to undergo neuropsychological exam by the insurance company’s doctor, we fight to make sure that a neutral 3rd party can be present to simply observe and monitor the exam. We’ve had cases where doctors write in their reports that certain exams were performed, when the were never administered or write that the patient performed particularly well on an exam, when in fact, they failed that part of the test.

The main argument we see from the insurance company is that an observer will somehow taint the testing process.

This is a red-herring for the courts, but some judge’s buy into it. Fortunately, the American Psychological Association, through their Committee on Psychological Tests and Assessment, has issued a statement on the impact [if any] of neutral 3rd party observers. They recognized in their conclusion that a neutral 3rd party observer "may facilitate validity and fairness of the evaluation".

Even if a judge disagrees with this attempt to facilitate some fairness and validity into the testing process, at the very least, they should allow video-taping of the exam so that the doctor knows that he is being watched and cannot take liberties with the insured.

I’m curious if Injury Board readers have had experiences with these insurance company doctors. Were you allowed to take a neutral 3rd party with you into the exam? Were you allowed to videotape the exam? Were you treated fairly by the doctor at the time of evaluation and at the time the report was dictated? Did the insurance company doctor come to conclusions after the 15 minute exam that none of your own treating doctors [who had been treating you for months or years] could find or substantiate?

Let us know.

For background on these doctors, check out some of my posts from last year….

http://traversecity.injuryboard.com/miscellaneous/insurance-company-doctors.aspx?googleid=231390

http://traversecity.injuryboard.com/miscellaneous/insurance-company-doctors-round-2.aspx?googleid=231394

4 Comments

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  1. Mike Bryant says:
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    Very interesting argument, I get concerned about the leeway “independents” are given as if they are real exams.

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    Excellent point Mike.

    To protect our clients, we require a stipulated order prior to exam which includes a number of different mandatory parameters for the exam. We believe the court rules here in Michigan mandate such an order. Most judges agree.

    We attempt to place the following restrictions on the evaluation for the protection of our clients:

    1. Recognizing that this is a medical examination by the defense, with the doctor of their choosing, there will be no reference to the term “independent” in the report and/or testimony of Dr. X. The procedure will simply be referred to as “an examination by Dr. X at the request of defense counsel”.
    2. That a representative of Plaintiff’s counsel’s office shall be allowed to attend the entire examination of Plaintiff in an observational capacity.
    3. That the Defendant’s medical examiner in this case shall be Dr. X, MD and the examination will take place on ___________.
    4. That it shall be Defendant’s responsibility to provide all pertinent medical information to the defense medical examiner.
    5. That Plaintiff will be provided a current copy of the Curriculum Vitae of the defense medical examiner in no event more than ten (10) days after the scheduled appointment.
    6. That Plaintiff will be provided a written statement of the charge for taking a one hour deposition within ten (10) days following the examination.
    7. That Plaintiff’s counsel will be provided the full and correct name of the defense medical examiner physician (or separate billing entity, i.e. payee) with tax identification number so that Plaintiff can comply with tax code and regulation requirements for any payments made in taking the physicians deposition.
    8. The examination must be limited to Plaintiff’s conditions which are in controversy in this action, namely her [insert injury].
    9. Any individuals assisting the defense examiner must be fully identified by full name and title to Plaintiff and Plaintiff’s representative in attendance at the examination and in any report authored by the defense examiner.
    10. No diagnostic tests or procedures that are painful, protracted or intrusive will be allowed. Further, Plaintiff consents to x-ray or other radiological or imaging studies of any body part representing a condition that is in controversy in this case.
    11. Plaintiff will be allowed to give an oral history of the incident and her injuries. She will not orally relate medical history which is unrelated to the areas of injuries claimed in the lawsuit. If asked, she may advise the defense medical examiner of any medical conditions she has that she believes the physician should know about prior to the examination.
    12. Plaintiff will not sign any paperwork or fill out any paperwork at the defense medical examiner’s office including “patient information forms” or “consent forms”, as Plaintiff is not a patient of the defense medical examiner’s office and is consenting to this examination only pursuant to the requirements of Michigan Rules of Court.
    13. The appointment will be scheduled so as not to cause Plaintiff a loss of time from work or at least to minimize such loss of time.
    14. The defense medical examiner must be provided with a copy of this agreement prior to the examination.
    15. The total time for examination and testing, if applicable, will not exceed two hours. If any period of time exceeding 30 minutes goes by after the scheduled starting time when Plaintiff is not being examined, either by a doctor or his staff, then Plaintiff will be free to leave.
    16. Plaintiff’s counsel shall receive a copy of all reports and writings generated by the doctor in this matter pursuant to Michigan Rules of Civil Procedure, including a copy of a detailed written report with results of all tests made, diagnosis, prognosis and conclusion of the examiner, all record review reports, billings, notes, etc. within 10 days following the examination.
    17. The defense medical examiner and an agent of any medical exam forwarding company will be made available for discovery only deposition prior to the close of discovery. Defendant will advise Plaintiff in writing prior to said examination of the normal and reasonable hourly rate for the deposition of both medical examiner physician and the agent of the forwarding company. Plaintiff shall pay in advance the physician’s pre-advised hourly rate for a one hour discovery deposition.
    18. That the Plaintiff is not required to bring any records or x-rays or other testing with her, but will provide Defendant with the necessary authorizations to obtain same.
    19. Defendant shall pre-pay mileage reimbursement to Plaintiff at the rate of $.51 per mile for the mileage incurred in attending this examination.

  3. Willard Gatzke says:
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    Be thankful that you do not live in Colorado.
    I recently lost all of my Workers Compensation benefits due to the actions of a doctor hired by the insurance company to do an “Independent Medical evaluation”.

    Due to a work injury I have a cervical fusion, a herniated lumbar disc, and two rotator cuff repairs. The accident left me partially paralyzed in my left shoulder with some sensory loss in all four extremities. While undergoing the examination the doctor in question also found a new problem that I was unaware of, namely that I have a form of neural “short circuit” (sustained clonus) in my left leg.

    This doctor refused to even look at any x-rays or MRI’s I have had done relying solely on my medical history records provided by the insurance company. (In Colorado these exams are paid by a state mandated set fee of $700 per procedure, the less effort a doctor puts into each exam the more money he can make.)

    Even with the findings presented it was his “expert medical opinion that cases such as mine were resolved within 6 months of follow up treatment”. The state run insurance company (Pinnacol Assurance) used this as a means of terminating my follow up care. Colorado law provides complete legal immunity for the doctors who carry out these examinations. It is not too hard to see where this leads. So much for truth and justice in the legal system.

    Until you are involved in a similar situation you are blissfully unaware that we all apparently live under the “golden rule”. Namely “he who has the gold, makes the rules”. The insurance companies have the gold, and they intend to keep it that way by whatever means are made available to them. To think that petty thieves are thrown in jail and this whole situation is perfectly “legal”. What a world.

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    Mr. Gatzke:

    Thanks for your comments. I think you’ve described a situation that many Michigan citizens are, unfortunately, familiar with. Michigan is one of 4 states her in the US that doesn’t hold insurance companies responsible when they wrongfully deny benefits.

    But, we have had some success suing these doctors for physically injuring poeple during exams, but have yet to hold them liable for rendering biased and unsupported reports that form the factual basis for a “cut-off” by the insurance company. Although, that may be changing as legislation was recently introduced that may change this. Stay tuned for more blog pieces on important changes in Michigan that will hold insurance companies liable for wrongful denial of benefits…..

    -Tim