RICO Suit is Character Assassination of IME Doctors at Highest Level
Wednesday, December 30, 2009 | 0
By Eugene Keefe
Synopsis: Character assassination of independent medical examiner doctors at the highest possible level—federal RICO lawsuit will now proceed to hearing.
Editor’s comment: We are chagrined to see a zealot Plaintiff law firm in Michigan filed a federal RICO (Racketeer Influenced and Corrupt Organization Act) case against an Illinois trucking company, an IME doctor and a third-party administrator. Plaintiffs allege these “conspirators” committed fraud and are “racketeers” by conniving to “intentionally deny” workers' compensation benefits to six claimants.
This month, the matter reached the U.S. Supreme Court, which allowed the matter to return to the District Court to proceed to a jury trial. For the first time we can remember, a group of traditional workers’ compensation claims will be litigated before a federal jury. At stake will be triple damages and attorney’s fees against the employer, IME doctor and insurance carrier—you can imagine how happy they are with the prospect of such litigation going forward?
This new facet of workers’ compensation law and practice is simply stunning to the entire workers' compensation defense industry. Please understand defendants have not lost the claim or paid a penny—the matter is simply going to proceed to hearing before a jury. What is stunning about the ruling is the clear statutory mandate in the laws of almost every state in the union which provides the measure of compensation is to be ascertained as a result of state-run administrative hearings only. Workers’ comp benefits in Michigan and almost every state are statutory only—you don’t have common law or federal rights to sue to recover such benefits. Well, thanks to this weird and unprecedented ruling, now lots of workers’ comp issues may be determined in the federal courts.
We again point out to the plaintiff/petitioner bar we feel such litigation is an overt attack on the system of litigation in work comp benefits. We truly feel highly publicized cases such as this point away from a litigation system because claimant attorneys never seem to want to just win cases, they apparently want to destroy anyone in their path who doesn’t immediately and totally agree with their every demand or wish.
We truly feel systemic attacks on otherwise routine and innocuous claims handling actions may point U.S. business away from continuing to use traditional workers’ comp litigation as a bona fide means to resolve work injury disputes because once plaintiff lawyers become involved, they now can’t seem to stay within the state systems they already dominate—now they have to go federal and seek triple damages and their fees and costs. Our quiet vote for the plaintiff lawyers bringing this case and those who counsel with them is be very careful what you wish for; we suggest you stand down from the potentially explosive federal battle and just win the respective workers' comp cases if you can and get what you get before the Michigan workers' compensation board.
As it would appears the federal courts are making up the law in the work comp arena as they go along, we will have to await direction and guidance on any number of new and strange legal standards such as:
- What is the level of assistance and cooperation between IME doctor, the insurance carrier/TPA and the employer which may cause the right to bring a RICO action?
- Will rights under the RICO statute lie if these parties supposedly cooperate in two cases? Three cases?
- How can a licensed and possibly board-certified IME doctor ever deny a claim or dispute surgery and not be at least arguably called a “fraud.”
- Do the rights to bring the federal action depend on the kind of questioning, support and responses being provided between the IME doctor and the workers comp carrier or TPA?"
So we always laugh when we hear an arbitrator say “Dr. Jones—oh, every time I see one of his reports, he denies claimant’s case.” Well, duh, if he didn’t deny the case, you wouldn’t see it. We are told there are many Illinois arbitrators who immediately “disqualify” even the best IME doctors from valid consideration in a pretrial or trial and openly announce to both sides their perspective. We truly feel such arbitrators should disqualify themselves from hearing cases where such physicians are involved because they cannot possibly be fair and impartial. And on the contrary, we have never seen an Illinois arbitrator similarly toss out of consideration the opinions and recommendations of some of the worst treating doctors or surgeons in the state—they never view treaters with the same derogation reserved solely for the defense IME doctor.
So you tell us the difference between “fraud” and a doctor’s honest belief in his or her medical assessment which is offered for consideration by all sides within a reasonable degree of medical and surgical certainty. Please remember doctors don’t “state facts,” they are medical experts and scientists. If a doctor can truthfully testify that it is his/her medical opinion to deny a claim or return someone to work, please tell us how it can be intentionally dishonest? It is an opinion and in a free country, everyone is entitled to their opinion. The Plaintiff lawyer and even the hearing officer doesn’t have to like or accept their opinion—that is why they are involved in the case! And most important, there are workers’ compensation commissions and boards across the country whose job it is to cull out the good opinions from the less reliable ones—we hate to see this decision now being left to folks on a federal jury who know absolutely nothing about trying and fighting the fight both sides routinely wage in heretofore administrative workers’ comp litigation.
So where does this new and weird twist in workers' compensation law and practice evolve from here? Well, if it is sauce for the goose, it should be sauce for the gander. How about the defense industry considering RICO actions against: Doctors who hook up with plaintiff lawyers to “exchange” or cross-refer each other patients and/or clients and regularly create questionable workers' compensation claims?
- Surgeons who are pals and cross-refer numerous patients to each other and always agree with their buddies’ surgical recommendation?
- The many “clinics” that obviously and wildly overbill in all of their workers' comp claims? Couldn’t a federal jury find routine and regular medical overbilling to be “fraud?”
- Hospitals that wildly overbill for “implants” to intentionally take advantage of gaps in the medical fee schedule? Wouldn’t it appear to be fraud to bill over $150,000 for a surgical implant in a WC surgery when they bill a fraction of that same cost for surgeries conducted in the group health setting?
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