For years, car crashes in Colorado have been big business for a handful of doctors hired to perform medical exams on people claiming to have been injured in the wrecks. Members of this small group of "independent medical examiners" were frequently retained by insurance companies hoping to prove the victims were faking.
In theory, any doctor could do the work. Yet insurance companies often preferred a handful of specialists whose exams almost always seemed to favor the insurers and give them a medical excuse not to pay the injury claims. Personal-injury attorneys sarcastically referred to these doctors as "the first team."
Starting this week, that will change. Thanks to a new state law that is the first of its kind in the country, independent medical examiners will be selected at random by computer. The only requirement is that they sign up--which they have been doing at a frantic rate that illustrates how medical testimony has become medical "testi-money," a growing, multimillion-dollar business.
The exact amount of money at stake varies widely, depending on who is doing the estimating. Personal-injury lawyers say that in recent years insurance companies, tired of paying off anyone with an attorney, have become less likely to accept settlements and more likely to fight all claims, regardless of cost. Many of these cases require that the insurance company recruit medical experts to offer their professional, scientific--and paid--opinions.
Daun Gretzinger, who is administering the new IME program for the Colorado Division of Insurance, estimates that medical examiners are used in about 5,000 cases per year in Colorado alone. Jim O'Donnell, director of operations for Medical Evaluators Inc., a Colorado Springs company that matches physicians with insurance companies in need of experts, guesses the number is more than double that, about 12,000.
From there the dollars add up quickly. A physician--or chiropractor, or physical therapist--can charge by the hour for exams, which can take as long as a dozen hours, or ask for a flat rate. Depending on the type of examination that is called for, the doctor can add thick padding to his clinical income.
Jim Leventhal, a busy Denver personal-injury attorney, recalls one recent case in which he took a deposition from an internist who charged $450 per hour for independent medical exams, some of which took as long as four hours. The physician reported performing an average of eight IMEs per week. Another doctor told Leventhal he earned between $2 million and $3 million per year conducting the exams.
All that money hasn't escaped the attention of the state's medical specialists most commonly in demand for disputed auto-accident cases--chiropractors, dentists, neurologists, psychologists, psychiatrists, plastic surgeons and orthopedists. Gretzinger says she has responded to requests for registration information from more than 1,500 health-care experts hoping to earn money as professional witnesses. The greatest number of registration requests--several hundred, so far--have come from chiropractors.
The new law, passed during last year's legislative session, came about largely as the result of one well-connected anecdote and one bad doctor. The personal story of hardship came from a legislative assistant for Senator Joan Johnson, an Adams County Democrat. After being given the runaround by her insurance company and its hired independent medical examiner following a car accident, the assistant told Johnson, who quickly proposed Senate Bill 96-78.
Helping push the bill through the legislature were numerous horror stories about a Denver psychiatrist named Frederick Lewis ("Opening a Shut Case," January 9). In fact, recalls George Rossie, a neuropsychologist who worked to make the IME bill law, Senate Bill 96-78 was fondly referred to as "the Lewis bill."
Lewis worked overtime for insurance companies as an independent medical examiner, frequently using his computerized "neuropsychological" exam to show that car-accident victims were "malingering." According to various court documents, Lewis continued performing the tests even after he was warned by state regulators that he was practicing outside his specialty.
Lewis died last June, but not before being named in three separate lawsuits charging him with malpractice based on his testimony for insurance companies.
Johnson's bill became law last summer, and the insurance division solicited bids for administrators of the fledgling IME program. The job was won by Gretzinger (who, coincidentally, shares office space with Rossie, one of the new law's most vigorous proponents). Since October 1 she has been registering doctors and preparing the mounds of required paperwork. The overhauled IME system was scheduled to begin on January 1 but has been delayed until this week.
Unlike the old method, in which insurance companies and attorneys selected their own medical experts, the new IME program will work more like jury selection in a trial. When an IME is required, Gretzinger will plug information into her computer such as what specialty is needed and the geographical location of the case. The computer will then spit out the names of five health professionals, along with their resumes and fee requirements.
Based on that information, the insurance company and the victim or his lawyer can select an acceptable expert. If the parties can't agree, the insurance company will disqualify two of the doctors or therapists and the victim or his lawyer will eliminate another two. The remaining candidate becomes the independent medical examiner.
New rules accompanying the computer program are designed to prevent any future Dr. Lewises. No doctor who earns more than 50 percent of his income from IMEs or who spends more than 50 percent of his time working on them may participate. Professionals who have been disciplined by a state regulatory agency may be included on the computer list, but they must disclose any action taken against them. And no doctor or therapist from outside of Colorado may be hired.
The new law has its weaknesses--there is nobody to check if a doctor is lying on his registration--but most participants in the auto-injury game seem hopeful that the program will work. Bill Hopkins, governmental-relations director for State Farm Insurance Co., which writes a quarter of the automobile policies in the state, describes the new law as "a dramatic change from what we've been doing in the past 25 years."
But he adds that his company supports the shift as a way to eliminate the perception that some independent medical examiners are less than independent. (Not surprisingly, Jim O'Donnell, whose Medical Evaluators could go out of business because of the new law, is less enthusiastic. "I would be surprised to see this result in any tangible benefit to the consumer," he says.)
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Gretzinger says the overwhelming number of Colorado doctors eager to participate in the new program is a reaction to physicians' longtime mistreatment at the hands of insurance companies. "There's a lot of animosity against insurance companies out there among doctors," she says. "There are many doctors out there who really want to make this program work."
O'Donnell, who has 160 doctors under contract, says that may be partly true. But he suspects that the state's new IME program also holds a more practical appeal for physicians. "It's a big business," he says. "There's a lot of money to be made out there."
Which may explain why Gretzinger's office has become a center of gossip lately. She says she has already received several anonymous letters--she suspects they are from doctors--tipping her off to other physicians she should be keeping an eye on because they won't make good independent medical examiners.
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