Aug 14, 2010

Actually, it absolutely is cheating. But, if they don't get caught, what difference does it make? What I am referring to is the practice of insurance companies using their own doctors for so called "independent medical examinations" of injured victims. Insurance companies then take these reports and use improper medical facts to ultimately support their improper claims evaluation. This happens way too frequently and insurance companies are rarely taken to task for it.

To that end, this is an article about cheating and largely getting away with it. This article will explore both alleged and real uses of "independent medical examinations" and outline the cheating tactics used by many doctors commissioned to assist the profit center aspect of the insurance companies. In addition to educating you to the abuse of these insurance company doctors, we will also suggest why you might need help in these situations.

A) The Usual Scenario:
An injury is presented to an insurance company. At some point, before offering settlement money, the claims adjuster calls you (or if you are represented, your attorney) and that call goes something like this:

"We want to make sure that we fully value the extent of Mary's injuries to ensure that we don't sell her short in our settlement offer, so..." Here comes the real purpose of the call: "we'd like her to be seen next week by Dr. John Doe and have her fully evaluated. After that exam, I'm sure we will be ready to start talking meaningful settlement figures."

Now, in fairness to the insurance industry, the doctors who work for them and all their lawyers "chomping-at-the-bit" to try and come after us, I'm am certain that these requests ARE NOT ALWAYS motivated for the evil purpose of attempting to cheat the injured person out of necessary settlement funds. I am certain that on occasion these are simply fact finding inquires by adjusters and I am also certain that THERE ARE SOME doctors who report their findings with the best of intentions. However, I am not speaking to that 5-10% of these occasions. I am speaking, from my professional experience, to the 90-95% of the times that these efforts are no more fact finding than Captain Kangaroo was either a captain or a kangaroo.

Overwhelmingly, these examinations are nothing more than the window dressing on which the insurance company justifies offering little, very little and sometimes nothing on settlements to injured people. The outcome is predetermined, and the letter to the injured party can be essentially written before the doctor sends over his report. The letter from the claims adjuster (and, it's always a letter at this stage) will say something like this...

"In light of Dr. John Doe's professional assessment that the need for the neck surgery was largely necessitated by pre-existing degenerative disc disease and this collision with our insured was, at best, a minor exacerbation, we are limited in our overall authority to resolve this matter. We are, however, prepared to offer $_____ (inadequate settlement figure). We are certain that Mary will be disappointed with this settlement figure, but she can take comfort in the fact that Dr. Doe is quite certain that this surgery would have been necessary, regardless of this minor exacerbation occurring in this collision..."

Another one bites the dust at the hands of the Dr Doe it seems? Perhaps, but scratch below the surface of what appears to be a fairly usual and customary insurance denial (or at least low-ball settlement offer), and there is no question that this was all a set up from the start, the outcome was never in doubt. Said another way, it is simply cheating by the insurance company.

B) What is Wrong With This Picture?
Plenty! First, just from the incomplete factual scenario above, a lady has neck surgery AFTER a crash that she clearly didn't need before the crash. By the way, how do I freely say that? Well, because if there was some doctor in Mary's past advocating a neck surgery BEFORE the crash, the penny-wise insurance company certainly would not have had her go see their Dr. Doe.

By the way, just in case there is an actual "Dr. Doe" out there somewhere doing these so called "independent medical examinations," relax, the name was intended to be purely a fictitious name. I have no Dr. John Doe in mind as I am writing this article.

Clearly Mary had no surgical recommendation BEFORE the crash. All surgical recommendations and the surgery itself happened only AFTER the crash. Furthermore, the ONLY thing Dr. Doe could come up with was that Mary had prior Degenerative Disc Disease. Please see our recent article about the phenomenon surrounding this illusive disease. But, if you don't have time to link to old article and want the short answer, I will give it to you.

Do you know who typically suffers from degenerative spinal disc disease? The answer is pretty much everyone in the world over age 21. It is just a part of aging, much like how your teeth file down over time. Not surprisingly, while nearly all adults in the world suffer this degenerative process, a small fraction of 1% of the world's population have ever had to undergo a spine surgery. In the aging process, our teeth, our hair lines, our joints, our spine and pretty much everything degenerates. In fact, radiologist who interpret sometimes hundreds of x-rays, MRI's, CT Scans, etc, often use the terms DDD, as opposed to writing it out. It is simply that frequent a finding.

With that background, did Mary's claims adjuster really need a doctor to enlighten her about Mary having DDD? Absolutely not. The adjuster really just needed someone with credentials and a willingness to play "The Game" to disregard the proof elements required in court, much less the "thin skull" doctrine, and write this fallacy of a report to create an issue where one did not exist before. This tactic is used to convince Mary to take a low-ball settlement offer and go away.

C) What's "The Game?"
First, you need to understand that the insurance company's evaluation of the case is supposed to consider the likely outcome should the case go to a jury trial. That means in evaluating an injury case occurring in Colorado, the insurance adjuster is supposed to consider how the evidence would be received in a Colorado court and what a jury would ultimately award Mary for her injuries.

Colorado juries are given instructions in every case to help them understand the law. One of these jury instructions is called the "thin skull" doctrine. It is specific language is found in the Colorado Supreme Court Approved Colorado Jury Instructions 4th Edition, 6:7. Detailed discussion of "thin skull" can be found in a recent article written by us. However, if you are just auditing this class, in short, the doctrine tells a jury that they are not to discount the injury the person had (meaning don't award less) simply because the injured person at the time of their injury might have had some physical frailty that would cause them to experience greater injury than the average person may have sustained in a similar trauma. In other words, the jury is instructed that you take your plaintiff as you find him.

If that is how the law would treat an asymptomatic DDD (namely, give it no weight in light of Mary's need for back surgery occurring only AFTER her crash) then why is the insurance company relying on Dr. Doe's report that says the surgery is really due to the exacerbation of her DDD from the accident?

The answer is...are you ready? It's The Game! It's like a bluff in poker. In the hands of a competent and experienced trial lawyer, it is extremely likely that Dr. Doe would not be giving his theory to a jury at all. Why then would the smart and yet penny-wise insurance company waste their money securing a professional opinion that would likely be stricken from jury consideration if tried against a good plaintiff's attorney?

First, insurance companies don't simply assume every plaintiff attorney out there is a good one. Also, many people will attempt to settle a case on their own. Others will retain counsel, who has no plan on ever going to court. Like most things with large corporations, it is simply a numbers game. While perhaps 20% of the time, "the Game" is identified and their efforts are thwarted by competent counsel, there is still the 80% who are influenced to accept inadequate settlements. In any event, that 80% success rate (if that is what it is and it may even be higher) means multiple millions of dollars of settlement savings to the insurance industry.

D. What Can An Injury Victim Do?
This is the type of issue that truly requires careful guidance from an experienced attorney. Agreeing to medical examination, under some circumstances, may be required by a policy. On other occasions the insurance company has no right to even ask for such a thing. Also, careful thought needs to be given as to the doctor selected, his or her track record and knowledge of the adjuster making the request. Attorneys, who frequently do this work, know how to deal with these requests for medical examination quite skillfully and they should be relied upon to navigate your case through this process.

At Anderson Hemmat, we recognize the games that insurance companies try to play and know that there are rules that apply to these games. Let us help protect your rights by enforcing the rules and not letting insurance companies cheat you out of a fair settlement. Call us today to discuss your case.


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