Academy of Chiropractic Personal Injury & Primary Spine Care Program

Quickie Consult 1118
Lawyers and Medical 72 L

From the Desk of Dr. Mark Studin
Academy of Chiropractic

Preamble: Many of the issues I bring to you are very small, yet each issue is just that, an issue. If you take care of the small issues, then you will be able to build and more importantly, focus on the bigger issues...a larger practice and more family time. -Mark Studin 2006

"Mandate to Rebut Improper IME & DME's"

Dr Studin: What's going on?

Guest Doctor: We have a court case coming up in the next month and the situation is the defense attorney had a defense medical exam performed just to paper review.

Dr Studin: slow down. And let me just explain the difference between an I.M.A and the DME. Everyone understands an independent medical exam as ordered and I use the word independently, is ordered by the insurance company where they physically evaluate the patient and they render an opinion to determine if care is indicated. A defense medical exam, a DME is ordered by the defense lawyer prior to trial or deposition and it's often just a paper review to see what's there and not there for the lawyer to argue and then potentially bring that D.M.E doctor in as a witness as well. So you're at the pretrial stage with the defense medical examination who did a paper review to see what they have and don't have in trial.

Guest Doctor: There was other doctors had seen this patient before. I got a hold of them, and there was three other MRIs. When did defense doctor reviewed this In his summary of everything he mentioned the MRIs in there. However, in three different places, he left out everything about disc herniations.

Dr Studin: So the DMA reviewed all three MRIs and all three showed a herniation?

Guest Doctor: Yes.

Dr Studin: And the defense doctor ignored any reference to that?

Guest Doctor: Yes.

Dr Studin: Now you are in a conservative state, And that matters in this conversation we have to bring in somebody called duty of care, duty of care means that in a plumber has a duty and this is a federal legal standard adopted by the states. A doctor has a duty of care to perform, doctor work. Now, there was a landmark case in Alaska and it was a silica company. They make those little packets. They've put in electronics. And the , employment doctor evaluated this worker who had go for recertification of his job because he was healthy and the doctors saw on a chest x Ray, which is mandatory that job that there was a spot on the lung, never said anything. Patient died from lung cancer. The family sued that doctor for malpractice. The state of California ruled that doctor has no duty of care to that particular person because he wasn't as direct patient. The only purposes was for employment and he has no responsibilities. So there's no duty of care in Alaska, in New York, in New Jersey for instance, it's regulated in and upheld in the appellate division, which is the second highest level of court in both states that the doctor, no matter the relationship has the duty of care responsibility just as they are the treating doctor, and by the way, it's split down the middle of the country. Half the states have no duty of care. The other half of the states have a duty of care. So you're in a conservative state. Most of the conservative states in the country have no duty of care. Some do, but most of Arizona's actually split in the middle. Half the courts in Arizona say no half, say yes. A which is not your state. So that's an interesting paradigm. Now with this DME doctor, there's another scenario other than duty of care because the doctor missed this as he put his name on it, we signed it so he, can fall behind. There's no doctor patient relationship, which then, and you've seen that correct? that's duty of care. So I don't know in your state if he can hide behind that. That's number one. Number two, there is a licensure issue of ignoring Facts by omission are just as egregious as wrong facts by admission. Do you understand what I meant by that?

Guest Doctor: Sure.

Doctor Studin: So you have to them render a rebuttal. I would petition this lawyer. I don't know how you do that with a DMA. I would just render a report and say that, you're going to report this to the licensure board.

Guest Doctor: Yeah, we did this, we took this a step further and once this was done, we found those spots in his report where, he talked about the MRIs, but he left out by omission. Then he just left us out. It was like a preconceived determination for the defense. If he would leave this out, then the case wouldn't look as bad. So we actually took this further and I had Ron, do a robot analyze this case for us. And he did and He did a letter.

Dr Studin: Is that Dr Minoni? Who wrote IME or DMU rebuttal?

Guest Doctor: Right. He took this and then gave it to the attorney. The attorney took it and put together, and the Patriot put together a letter and did file a complaint with the medical board about this doctor. A medical board basically sent back what they have control over. And one of the things of omission, things like that. Basically what they came out with, their list of things that they do have control over. It says, things with omission, dealing with licensure, they have control over overall. But they really didn't say that they had any control over the fact of him omitting this. Now he had an opportunity to respond to the complaint and he said, well I was just summarizing the MRIs, but it was funny that he missed it three times the herniation.

Dr Studin: So the answer was the license reports said they have dominion over this because he admitted an important component of the report that they did.

Guest Doctor: They came back and said basically they didn't do anything on it. They just said, we're going to keep this in his file.

Dr Studin: Yes. Most licensure boards, in a very liberal state like Michigan considers that a felony. They're the most aggressive in the country, but most licensure boards will do nothing. They'll investigate, they'll do nothing. And they see the second time you'll start to do something. By the third time, the guy's losing his license. So this is why you must always, respond to these things because the doctor can say, I made a mistake and they're going to give the benefit of the doubt. But then again, in court, now this attorney gets to use this. He gets to use your letter and the document and what the board said that yes, he made a mistake and he acknowledged he made a mistake. So lawyer said, it's really there. He made a mistake. Now the question is, and the lawyer should write a letter saying, now that you know, you made a mistake, that you choose to change your report, yes or no. You acknowledge to the licensure board, you made an error, but do you choose to make it? And that's what you should tell the lawyer and now you're telling the lawyer you understand the issues. But with this particular DME doctor, which I'm sure is an IME doctor, he will also, think twice about doing it the next time. And it really helps level the playing field by bringing the truth out.

Guest Doctor: Well, I figured in trial what's going to happen, cause I know the defense attorney is pretty well gone against him several times and they're going to bring up the fact that we're going to bring it all up about every bit of this and show how he was deceptive. Dishonest in his opinion, he had an opinion. His opinion is his opinion, he can't just leave out facts. And so the situation here is because the medical board didn't do anything and now the defense was going to try to play that up as well. He didn't do anything wrong. And, but what is very interesting with this too is last August when you did the attorney seminar and we did the deceptive medical rhetoric seminar, the defense got ahold of that. And matter of fact, all the defense firms was invited, none of them showed up and we have used that in court in previous cases, to our advantage big time when they want to bring this up about the defense medical rhetoric. And, if this guy's going to bring it up too, cause he was on the list to be invited in. And so we're going to use that against him, but he wants to talk about in the defense medical rhetoric, they want to make a big to do out of that and make it look like I'm a plaintiff, a just to plaintiff doc only settings.

Dr Studin: You invited them.

Guest Doctor: I invited them, because what we're going to show them is this is the problem that we're talking about. This is where the defense medical record, they're trying to come up with a predetermined conclusion based upon who them to give an opinion on the case. And they're trying to slant this and they're doing it by deception and omission. And this is wrong. Now they're trying to encourage other attorneys to file complaints against this doctor when they find that he has omitted something with it. And if they keep doing that, this guy's either going to straighten up his act or get out of the business.

Dr Studin: Well, it's not a question of that, he's going straighten up his act or the licensure is going to take him out of the business. That's just the way it is.

Guest Doctor: my question in all of this was that if you had any other recommendations besides what we were going to, we're going to show where he left out the herniations and there was the...

Dr Studin: licensure complaint and also show the boards the boards response. And the response was, is he said, I just summarize the case. he didn't defend that. he did not admit that. And the state licensure board found that he did something wrong, which is why they are leaving this in his record. They are not acting on it. They're giving him the benefit of the doubt that he made this error and it's just an error. not a pattern, but he acknowledged he made an error and they're keeping it in his permanent file. If he did nothing wrong, there would be no permanent file.


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