In all personal injury actions, the plaintiff bears the burden of proof regarding the nature and extent of the injury. To rebut the plaintiff’s claims of injury, the defense is entitled to have the plaintiff examined by a physician of its choosing. Typically, these examinations are referred to as independent medical examinations (IMEs) or what might more properly be referred to as defendants’ medical examinations. For years, these examinations have been part and parcel of every personal injury claim.
Recently, the credibility of certain physicians who conduct these examinations has been called into question. As has been suspected for many years, certain highly paid yet unethical doctors have been less than thorough and honest in conducting these examinations, rendering reports and providing opinion evidence in court. While insurance companies continually plaster advertisements suggesting that certain plaintiffs have been exaggerating their injuries for money, the ugly secret that a number of insurance companies do not want made public is that certain examining physicians provide phony opinions for money on an ongoing basis to defeat or diminish legitimate claims.
One of the most egregious examples of such unethical behavior on the part of a defendant’s examining doctor took place recently in New York Supreme Court, Queens County. In Bermejo v. Amsterdam & 76th Associates, Index. 23985/09 (Sup. Ct. Queens), a “regular” in the business, Dr. Michael Katz, testified, in part, that he conducted a follow-up IME that lasted approximately 10 to 20 minutes. Unlike the typical case, in which the examining doctor could testify as to the length of his or her examination and maintain that position even if challenged on cross-examination, the plaintiffs attorney in this case did something unusual: He videotaped the examination without the doctor’s knowledge. That video revealed that the total time of the examination was one minute and 56 seconds—a far cry from the 10 to 20 minutes stated, under oath, by the examining doctor.
At no time prior to cross-examination did the plaintiffs attorney reveal that he was in possession of the video. His position was clear: The examining doctor was not a party to the lawsuit, there was no requirement to disclose its existence and there would never be any reason to reveal the existence of the video if the examining doctor told the truth. It was only when the examining doctor told less than the truth that the video would become relevant.
Needless to say, the trial court was understandably outraged upon learning of the doctor’s lie. The court made clear that the doctor’s medical-legal practice, in which he made more than $1 million a year conducting IMEs, was probably over. For his apparent perjurious testimony, the doctor was referred to the Queens County District Attorney’s Office.
The court was also troubled by the plaintiffs attorney’s failure to disclose the tape at any time prior to cross-examining Katz, and declared a mistrial. Thus, not only is the saga regarding Katz far from over, its impact on IMEs going forward and the courts’ views regarding the propriety of videotaping a doctor’s examination remain to be seen.
There is no specific statute governing the appropriateness of surreptitious videotaping of independent medical examinations. Moreover, the ethical opinions regarding secret video-recording specifically fail to provide clear guideposts for attorneys. For example, the American Bar Association, in Opinion 01-422, found that, in general, undisclosed taping by an attorney or his agent was not in and of itself prohibited. In accordance with that opinion, the New York City Bar modified its previously held position that undisclosed videotaping was unethical, holding that such conduct was permissible, but only where the lawyer “has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good.” Thus, one may fairly conclude that if the attorney has reason to believe that the testimony will be perjurious, video recording is permissible.
Clearly, the use of videotaping has long been used by attorneys in a wide range of cases—from matrimonial actions to corporate claims to criminal cases. As it relates to personal injury actions, defense attorneys have become well versed in the use of videos to discredit a plaintiff’s claim of injury. While the law regarding the surreptitious taping of a plaintiff in a personal injury action has developed over many decades, as in DiMichel v. South Buffalo Railway, 80 N.Y.2d 184 (1992), and its progeny, the issue of the propriety of the taping in the first instance and its disclosure seems to have been answered: There is no prohibition against such taping and there are now definitive time periods in which disclosure of the video must be revealed, as per Tai Tran v. New Rochelle Hospital, 99 N.Y.2d 383 (2003).
When it comes to the videotaping of the IME, however, the law is not so clear. In New York, not only is there no statute directly on point but there is a paucity of case law supporting or prohibiting such conduct. The question that will likely be addressed in the near future is whether the plaintiffs attorney or his or her agent should be permitted to videotape the IME, and, if so, when disclosure should be made. Many see no difference between the defendant’s right to surreptitiously videotape the plaintiff and the plaintiff’s right to surreptitiously videotape the IME. Both the plaintiff and the defendant are seeking to use the video for a similar purpose: to discredit the credibility of an individual through the use of extrinsic proof.
Working With Video on Cross
The goal of the cross-examiner, at all times, is to attack in such a manner so as to create a powerful argument for summation. The difference in cross-examining an expert witness as opposed to a lay witness is that much more care and effort need to be put into the development of the set-up before the witness is knocked down. When dealing with an experienced yet unethical IME doctor, the challenge on cross is even greater. Clearly, this is a witness who is willing to lie to defeat a legitimate claim. Not only must the attack focus on the substantive medical proof but the attack must address the collateral matters such as the witness’ desire to continue earning significant amounts of money by conducting IMEs year after year.
Take the scenario in which the IME doctor is an orthopedist examining a plaintiff who claims to have suffered a lumbar herniated disc. Assume the same set of facts as above. The doctor claims to have conducted a 10- to 20-minute examination of the plaintiff in which he conducted numerous tests. In actuality, the examination lasted one minute, 56 seconds. The entire examination was, unbeknownst to the doctor, secretly videotaped.
While the plaintiffs attorney could move in for the kill immediately, that tactic might not get the desired punch the attorney thought it would:
Q: Doctor, you just testified that the exam lasted 10 to 20 minutes, correct?
Q: Isn’t it a fact that the exam lasted less than two minutes?
A: I don’t believe so but it wasn’t a long exam.
Q: I’m going to ask that this be marked as plaintiff’s exhibit 52 for identification. Doctor, I am showing you what has been marked as exhibit 52 for identification. Take a look at the video and let us know when you have finished reviewing it. Isn’t it a fact that this is a fair and accurate video recording of your examination of (my client)?
Counsel: I offer exhibit 52 in evidence.
Q: Isn’t it true that the examination was less than two minutes?
A: As I testified, it wasn’t a long exam.
Needless to say, the “gotcha” moment was diffused by the failure of the cross-examiner to conduct a meaningful set-up before moving in for the kill. By paying attention to detail, and learning the essential substantive components of the exam, the cross has the potential to completely discredit the doctor and make meaningless any opinion offered by this so-called “expert.” Consider a more appropriate set-up.
Q: Doctor, you conducted a full examination of (my client), true?
Q: Certainly your examination was a complete one, right?
Q: The exam was fairly conducted?
Q: We can agree it was a thorough one, right?
Q: No one forced you to take short cuts?
Q: You performed all the necessary tests, right?
Q: And that’s how you can offer a legitimate opinion to the jury, right?
Next, continue the set-up with the “negatives”—those things that if not done would challenge the legitimacy of the expert’s opinion:
Q: To the extent that you didn’t conduct a full and fair examination, your opinion would be less than valid, true?
Q: To the extent that you didn’t conduct a thorough exam, you would agree your opinion wouldn’t have a solid factual foundation, right?
The attorney should never be afraid to tackle the expert on the substantive issues before moving to the collateral attack. By learning the various tests necessary to conduct a clinical examination, the cross-examiner can expose the lie in exquisite detail:
Q: Doctor, you’ve told us about various tests you performed to determine whether (my client) was suffering from a herniated lumbar disc, true?
Q: You mentioned about 10 such tests, true?
Q: One of them was the “Straight Leg Raising Test,” right?
Q: That’s a test where you had (my client) lay on the examining table face up with both hips and knees extended, true?
Q: You then slowly raised her leg until pain was noted, correct?
Q: You were in no rush to conduct this exam, right?
Q: You then slowly raised her other leg until pain was noted, correct?
Q: You then performed this same test while (my client) was sitting and you extended each of her knees?
While it is usually preferable to lead on cross, there are times when low-risk open-ended questions can be very powerful:
Q: How long did these straight leg raising tests take in total?
A: I would say about three to four minutes.
Here, the cross-examiner must resist the temptation to move in for the kill. Although the attorney could prove the lie at this time, it is far more effective to wait and bring out all the tests, and attach specific time periods to each. For example, the same type of cross could be conducted with the Thomas test, Kemp’s test, Trendelenburg sign, Milgram’s sign, Bechterew’s test, Valsalva Maneuver, etc.
Q: Doctor, in total this exam took approximately 20 minutes to complete, true?
Q: That’s the way you always conduct such exams, right?
Q: After all, if you didn’t take the necessary time your opinion wouldn’t be as valuable, right?
Q: And it certainly wouldn’t be legitimate, true?
Q: That’s why you can offer your opinion with such certainty, right?
At this point the video can be introduced to impeach the credibility of the doctor in much the same manner as in the prior example. Additionally, the doctor can be cross-examined on collateral matters to expose the reason for the lie:
Q: Doctor, we now know the exam lasted less than two minutes, true?
Q: Do you agree that’s a far cry from a full and fair 20-minute exam?
Q: How much were you paid to conduct that two-minute exam?
Q: Did anyone force you to conduct the exam in less than two minutes?
Next, with a touch of righteous indignation and a hint of disgust, the cross can bring home the point:
Q: That was your decision and yours alone, to take shortcuts and then offer an opinion to this jury, true?
Needless to say, the collateral attack could continue by pointing out the amount of money the IME doctor makes on a weekly and yearly basis, further exposing his or her motivation to continue providing less than honest reports to ensure future business.
Just as defendants use surreptitious video recording in an attempt to capture images of unsuspecting plaintiffs engaging in activities they claim their injuries restrict, in fairness, plaintiffs should be afforded the same opportunity when it comes to challenging the weight of the opinions offered by defendants’ examining doctors at trial.
If armed with such indisputable proof of the doctor’s inadequate exam, the skilled litigator must be patient during cross-examination to allow the jury to perceive the full weight of the expert’s attempted deception. By questioning the doctor in detail about the complete scope of his or her alleged exam, the revelation of the physician’s actual exam will resonate strongly with the jury.
Richard Steigman, a partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, assisted in the preparation of this article.
Evan Torgan is a member of Torgan & Cooper. He can be reached at firstname.lastname@example.org.