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MEDICAL REVIEWS: SEARCHING FOR NEEDLES IN THE HAYSTACK
By Adolpho Nunez-Guererra, M.D.
Last night, taking a break from the never-ending stack of patient case files that sneak into my office and land on my desk whenever I turn my back for more than a second, I decided to partake in a rare and much needed break. I confess, the culprit was Netflix and the specific choice was to watch the first two Season One episodes of “House.”
Episode one, probably like every other script written through the course of seven years, was about a young school teacher who quite suddenly — and for no immediately apparent purpose – – began seizing just before she passed out cold on the classroom floor in front of about 25 terrified kindergartners. The team of medical specialists immediately went to work doing their diagnostic magic, nearly killing her with wrong approaches before somebody noticed that tiny little clue, some weird dormant larvae that had suddenly come alive and built its home in her brain tissue.
The hook behind the tremendous screen success of House was that he almost nearly won before the last video frame hit the screen — in itself amazing because of two very important but not often seen facts.
1) medical mistakes impact every 4th patient and
2) are the 5th leading cause of death in the US.
My thoughts switched to a very thick Medical Review file residing on my overloaded desk. Doctors are surely not the only ones who often miss a hidden clue and lose the patient. Claims people also draw their conclusions from first word impressions and form a diagnosis. The reality is that with 20, 40 or a 100 lines of coverage they are pressured to close before the end of the quarter, they can’t afford the luxury of time it takes to cover all of the fraud litmus tests.
Plaintiff attorneys know this. “Kill ’em with paperwork and they’ll pay,” is a motto that many firms rely upon.
The busier they are, the less intense scrutiny is directed at the thickest of files. And the more careless, even though understandably careless, decisions are made. There’s a lesson every claims department can learn from Gregory House; look in every corner, beneath every rock, examine the historical information with a magnifying glass and don’t ever fall into the pattern of “no, it just couldn’t be ….” The only minute clue you miss can make the difference between falling victim to a fraud or discovering the truth.
I am considered a Medical Review expert. I’m using an assumed name for this article because I’d be happy to pound my own chest with pride on this one, but not as a commercial for my services. I have an advanced medical degree, hundreds of court appearances, and most importantly — I swing both ways. I look for the truth of a case and ignore which side of the plaintiff/defense fence that truth lives in. My credo is “The Devil is in the Details.”
For the sake of anonymity and strict adherence to HIPPA rules and regulations, this claimant’s name is “Jane Smith” and the case file forwarded to me included more than 800 pages of records. The referral came from House Counsel of Great Big Insurance Company (GBIC) which holds the first $300,000 in BI coverage for their insured, Mary Jones. Ms. Jones also has an umbrella policy with GBRC (the “R” is for reinsurance) that provides an additional layer of $700,000. Ms. Jones is a well-to-do retiree, aged 63, who drives a purchased-new-in-2004 high end 10-year-old Lexus equipped with all of the bells and whistles. Her 47 year driving history is both ticket and accident free.
Mary Jones was backing out of a parking space. Her well-maintained Lexus was equipped with a back up cam and a warning device; neither alerted. The equipment was certified by the Lexus dealer as ‘fully operational’ within 12 hours of the alleged collision. It was neither day or night, rather the ‘dusk’ transition time that connects the two. A read of the Event Data Recorder indicated the unit was working and there was no “event.”
The alleged nighttime parking lot accident centered on an indecipherable scratch (rear passenger fender, front to back) on claimant Jane’s Altima. There was no transfer of paint and no damage at all to Mary’s car. It did not match the height of Mary’s bumper, being three to four inches off. Pictures were taken of both cars at the scene, however it was almost dark and, while of poor overall quality, they did make a strong case that IF there was an impact at all, the minor scratch on the Altima could not have been made by the Lexus’s bumper. It wasn’t even close; perhaps 4-5 inches off.
The Lexus had been in reverse and according to Mary’s later deposition she was backing up slowly, cautiously, as was her usual driving pattern. Her windows were closed and the air conditioning fan was blowing. She felt a minor bump and attributed it to a just-as-minor crack in the parking lot asphalt, of which there were many. Her first inkling of anything out of the usual was that Jane approached the driver’s side window of the Lexus yelling; “you hit my car!” Mary exited the Lexus, looked at both cars (separated by about three feet) and saw zero damage. She instantly thought it was a probable set up, enforced ten fold when a second woman approached and said “I was in my car right over there (immediately behind Jane) and I saw it all.”
Mary was reported to have said, “there are no marks, no damage, so I don’t think there was an accident. But if I did hit you, I’m sorry — and let’s just go our separate ways.” Both Jane and Phyllis, the witness,” were large people and Mary’s car was blocked in. She turned and walked into the hotel to get Security.
When Security came outside, within just a few minutes, the guard and Mary were greeted with the sight of Jane sitting sideways in her own car’s driver’s seat and claiming neck pain, back pain, and the addition of “I can’t feel my legs …”
Jane was transported by ambulance to a hospital ER 20 miles away and complained about every part of her body. Her five day hospital stay resulted in $84,000 in medical bills. Jane hired a plaintiff lawyer and a policy limits demand was sent.
Jane’s history is, for lack of a better word, “colorful,” however defense counsel commented that she was believable in her deposition. Initial investigation would show that she had a failed back surgery, was a morbidly obese diabetic who followed no special diet and refused to take prescribed medication, and had a workplace slip and fall claim and an unresolved permanent disability claim in her somewhat recent history.
There is a significant part of this saga that has been omitted. Eight hundred pages worth of medical reports is a lot to read, especially when using a yellow high lighter to underline those things that will eventually contribute to the “big picture.” Even an untrained eye would approach the file with serious doubts, however the company’s major concern was that the limits request had been made and refusing the payment could take the cap off an eventual court settlement.
Included with the seemingly endless medical records was (1) an unsolicited letter from witness “Phyllis” about how terribly Jane had been injured — including a line reading “and since that Lexus lady shot out of that parking space and crashed into her car, she is injured so bad that she can’t even have sex no more and it’s causing her a lot of depression because you know how cranky a lady gets if she can’t get her goodies,” (2) sketchy interrogatories from Jane’s attorney, and depositions taken from Mary, from Jane, and from Phyllis.
Mary firmly stated, in Bill Clinton fashion, “I did not hit that woman’s car.” The only difference is/was that Mary and Bill are very different people and the probability that Mary intentionally distorted the truth, in my estimation based on her clear and concise deposition, was one in a 17,565,645,501,715 — roughly equivalent to the dollars in the current US National Debt.
At this point it bears mention that my initial exposure to this case came about because Mary is my first cousin and I’ve known her for my entire life. I’d responded to her telephoned request — “I have an appointment with the company defense attorney tomorrow,” she said. “Will you come with me?” Jane’s medical bills were ongoing, she was allegedly using a wheelchair, unable to enjoy life, depressed — and only in her 40’s. If real, her claim could exhaust the $100,000, exhaust the umbrella, and Mary could lose her house, her 401K and everything else she had worked so hard for.
Knowing the inner workings of insurance companies as I do, it would not have surprised me to learn that a $100,000.00 underlying check would be issued to avoid exposure to litigation and who knows about the reinsurer? After all, there were $84,000 in primarily diagnostics and a newly reported right wrist injury allegedly sustained when Jane’s hand was “jammed into the steering wheel by the extreme force of the collision.” This latest injury was not healing well because Jane had to support her body weight with a cane — held in her right hand — when she moved from her wheelchair to her bed. Poor Jane could no longer write or fully use a computer keyboard.
The raw facts of the case and the eventual settlement would entail weighing the costs of defense against the exposure. For the underlying $100,000, the company was looking at an accident reconstruction bill, an orthopedic and a neurological IME (at the very least), additional/comparitive diagnostics and studies, the cost of experts, attorney time and litigation. In other words, they could pay almost the cost of a limits demand in the fees to fight what might be a fraudulent claim. So when Mary asked me to accompany her to the attorney’s office, I said “sure.”
I’d already called in one favor by getting an Accident Reconstruction expert to pull the information from the Event Data Recorder in Mary’s Lexus. It was clear that there was no event. I’d also directed Mary to get the statement from the Lexus dealer to confirm the “on and working” status of the back up cam and the alert system. Offering to accept $1 as payment to do a full medical review was the least I could do to assist the insurer, right?
Almost 20 hours later, entailing two ten hour days of records review, there was no doubt that Jane’s story was not adding up. There was also no doubt that Phyllis, whoever she was, did not just happen to be standing there watching the “accident” occur.
Buried in the 800 page hay stack and the deposition testimony were needles. By completing a timeline, it became clear that the discrepancies and contradictions were numerous enough to present a strong case in a court of law. With each find, the chances of 12 jurors having the wool pulled over their 24 eyes became more remote.
- The placement of the cars was all wrong.
- Phyllis was going the wrong way to be doing what she said she was doing.
- Mary’s car was undamaged, the EDR did not register, and the back up cam did not alert.
- Jane’s scratch (directional) could not have moved her car to the side.
- Jane’s right hand could not have jammed into the steering wheel from a passenger side bump unless she was standing on her head and had not, as she reported, just put the car into forward Drive. The gear shift, as shown in pictures, was on the center console.
- The standing on her head could also have accounted for the knee and hip problems, if they were real.
- “I can’t feel my legs” and her temporary paralysis did not stop her from sneaking out of bed in the middle of the night and going outside for a smoke — as noted on the nurse’s log on two occasions.
- And the list continued.
Most distressing was that Jane surely did not come up with the original idea of, “My, my, my. I think that I will go get myself injured in a bogus auto accident, find myself a hungry attorney, and hope that my file lands on the desk of a busy adjuster who is so wowed by the cost of a hospital covering it’s butt by testing for every single complaint that I can think up, that they will just hand me a big chunk of money.” The chances are far more extreme that somebody Jane knew was walking around with a wad of money that had dropped into someone else’s pocket from a similar (non)mishap. Or, that Jane’s last job, nearly four years earlier, working in a plaintiff attorney’s office, had planted the seed for her eventual retirement fund. (That she no longer worked for that PI attorney due to a slip and fall in his office while she was mopping the floors — which led to a workers’ comp claim and a state claim for permanent disability — was perhaps nothing more than poetic justice.)
There is one more possibility that is more frightening than either of the other scenarios. It may be indicative of not only a crack in our system, but a vision of things to come. Let me make it clear; I do not believe that the outcome was carefully planned and executed. Rather I think that the result was such, that if word spreads, auto claims could be in a heap of trouble
What has me so worried? Jane was in the midst of the paperwork nightmare of a claim for total disability. Lifetime total disability. Exactly that entitlement that has been cut way back by the US government in recent years. Jane’s uncontrolled diabetes and a failed back surgery years earlier had combined to cause some level of pain — which would definitely have been lessened by medication, weight loss, and dietary control — and her medical records reflected that. When a patient chooses to be a contributing cause to her own disability, the “system” (made up of the doctors who staff it and see dozens of patients each day) is not quick to dictate the words “total disability” into the case file. Which is exactly what happened with Jane’s disability claim; it was gathering dust is a system that has tremendously cracked down on disability claims based on subjective injuries.
The deposition testimony taken from Jane revealed that the neurologist she saw in her auto “accident” hospital stay had written those magic words in his report. “Totally disabled.” And the moment that Jane’s husband got a copy of that report, he marched it down to the SSDI offices and made it part of Jane’s disability paperwork. Between the day he turned the paperwork from the post auto accident in as substantiation for a previous claim that was in limbo — and the day of the deposition –guess who was granted lifetime SSD based on what she had told (her version) an ER neurologist with an entirely different focus (that of immediate care)?
What if, just what if, Jane tells her friend, her neighbor or the postman, “Here’s how it works. All you gotta do is go to an emergency room with some emergency, even one that isn’t real (wink wink), and those referral doctors are so busy that they will write down as fact whatever you put in the records as information” .. And that’s the report to use to validate your “stuck in the system” claim. I have not yet seen copies of Jane’s previous medical history. What was the failed back surgery? What symptoms were claimed in the initial SSDI filing? What was in the files of the six medical practitioners Jane had seen in Florida, earlier in her report of symptoms; like those that preceded the back surgery? In fact, my biggest concern is that nobody in the auto claims process (even after a no damage accident, an insured who said it did not happen, a back up cam and collision alert system that said it did not happen, a Vehicle Event Recorder that did not register an incident, nurses notes that revealed the paralyzed woman could walk when a cigarette was the prize — twice — and a high value second claim on the line) ordered copies of any past records. The potential ramifications of this claim scare me — there is a connecting bridge that could work to the detriment of auto insurers (or liability of any kind) and pending state or federal disability claims. I’ve requested the records mentioned above — let’s see if the House Counsel chooses the right pathway or the left pathway. Double entendre intended.
I’d like to repeat that much of this article is a work of fiction, however it is based on a real case that has not yet been settled. Names, places, and specifics of injury have been changed for very obvious reasons. I’d also like to repeat another truth, that being I am a Medical Review Expert with a great deal of experience on both sides of the fence. My observations, gained over many cases, include that insurance companies increase the depth of their self-burial plots every time they opt to pay a fraudulent claim. Jane indeed wants her “goodies,” but those goodies come in the form of insurance company drafts, not in the form of husbands wearing nothing but a smile.
Adolpho Nunez-Guererra, M.D, is the pseudonym intended to conceal the real identity of a Medical Review Expert, a Medical Defense Expert, a Plaintiff Defense Expert, an IME provider and a long term participant in the workers’ comp system, the insurance system, and a provider of health care to thousands of patients.