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Index March 13, 2007
Examining the examiners". . . there is a dark underbelly in the business . . . many patients “are being profoundly mistreated.”March 13, 2007 | Celia Milne While most of the thousands of independent medical exams conducted each year are professional and impartial, the field is tarnished by the few substandard assessments that fuel controversy and acrimony TORONTO | “I have seen the worst side of medicine,” says Melissa Felteau, a Thunder Bay, Ont., resident who was in a car accident in November 1993. It wasn’t her ruptured spleen, internal bleeding, broken ribs, severely damaged left breast and brain injury that broke her spirit, but rather the gruelling series of province-wide medical assessments her insurer ordered her to undergo as she fought for medical benefits. Before the accident, the then 31-year-old Felteau had been working as the director of public relations at Lakehead Psychiatric Hospital in Thunder Bay. She tried to go back to work three months after the accident, but was horrified to find that she had lost her ability to concentrate and plan, as well as some short-term memory. She stuttered. She could read but not retain information. She could write, but not string sentences together. “It was mortifying; I used to win awards for my writing,” she said. “I went from being a highly functioning executive to being multi-disabled. Yet it was all invisible. You look fine.” Five attending medical doctors, including her neurologist, diagnosed diffuse axonal brain injury. Two neuropsychological assessments at the time confirmed the diagnosis, and a treatment plan was drawn up. Felteau’s insurance company, however, ordered her to see assessors hired by them. “So started the nightmare,” she told the Medical Post in an interview at a Toronto hotel. Over the next two years, she was sent to a psychologist, an orthopedic surgeon, a physiotherapist, a behavioural therapist, an internist, a psychiatrist, another psychologist, a psychometrist and a sports medicine doctor. Felteau said she felt many of the assessors were patronizing. “It’s the patient alone in the room with a medical examiner who has the power to deny or terminate medical treatment. They sit there and they’re cold, impassionate, skeptical.” Insurance coverage for Felteau’s treatment was denied. That’s when things got ugly. She sued her insurance company for failure to provide timely and adequate rehabilitation, and so began six more years of poking and prodding by many more doctors. All in all, she estimates she had 22 independent medical examiners (IMEs) between those ordered by her side and those for the defence. “It ends up being a (confrontation) between the doctors, while the patient suffers,” she said. “They snow you under with assessments. Most patients say, ‘I can’t take this’ and they give up.” Felteau kept on going, but paid a high price. By the time her case was settled out of court eight years after her accident, Felteau said she was traumatized by the IME process. She developed idiopathic anaphylaxis, and has experienced 17 episodes of anaphylaxis, which further damaged her neurological system. “I have a life-threatening stress reaction,” she said. She is now a volunteer clinical educator at Lakehead University and the University of Ottawa Rehab Research Group and is studying (with help, to accommodate her still-existing deficits) for a Masters degree. “We are victims twice, first by the injury and then by the system.” Felteau’s story is not an isolated one. The Medical Post set out to discover more about the world of IMEs. (The acronym IME stands for independent medical examinations, but the “E” loosely refers to both exams and examiners, so it is possible, semantically at least, to be an IME, have an IME or do an IME.) We pored over cases in which IMEs had been used: car accidents, chronic illness, workers’ compensation; we called doctors across Canada who either do IMEs themselves or are knowledgeable about them (not all of them called us back); we spoke to several lawyers; we attended a medico-legal conference; we met Felteau, as well as a doctor who runs one of Canada’s largest IME companies, and a representative from the insurance side. IMEs, it seems, operate on kind of a wild frontier of medicine. While most of the tens of thousands of independent medical exams conducted each year in Canada are no doubt professional and impartial, the field is tarnished by the few exams that are shoddy and substandard. Without exception, our contacts told us there are some bad eggs in the IME business. Most were quick to add that there are charlatans in every profession. The difference—we thought as we pursued this investigation—is that with bad IME assessments (unlike, say, bad audits) patients can get hurt, and there’s not much that ethical, caring physicians can do about it. Dr. Beverly Tompkins is one such caring physician. She is medical director of the Burke Institute in Calgary, a clinic for patients who are highly impaired and disabled with multiple sclerosis and other chronic diseases. She has dealt again and again with a handful of insurance-paid doctors who she says give biased assessments. “(With this group) appropriate physical exams are not being done. Doctors are actually assessing but doing a very poor job. The answer is favourable to the insurance company time after time after time. They are in conflict with other physicians who have no vested interest,” she said. “Sometimes my treatments are overruled. Their assessments are completely flawed. It is unacceptable. They say the patients either don’t have the health problem or they can work despite it. Or give them an antidepressant and they’ll be back at work in three to six months. “Every now and then they give a good assessment so that they don’t look like they always give bad ones.” But the end result, she said, is that many patients “are being profoundly mistreated.” Some IMEs neglect to ask meaningful questions to patients or manipulating the wording of the diagnostic criteria in order to come up with a diagnosis of psychological problems, she said. In one case, Dr. Tompkins said a doctor giving testimony in court deliberately changed the wording of the DSM IV in order to boost the defence argument. The effect of losing benefits has been devastating for some of Dr. Tompkins’s patients. Many end up in poverty. “Stress makes them much worse; they lose their families; they can’t afford food. This causes not only financial harm but health and psychological consequences. It is so outrageously horrible.” And Dr. Tompkins can often predict it. “A patient comes in and tells me ‘my insurance company is sending me to Dr. X for an independent medical examination next week.’ I already know what the conclusion is going to be. I don’t tell them they’d better start getting ready to sell their house, but my heart falls for them.” Calgary is not the only city where physicians working with chronic disease patients complain about IME assessments. “It is like a factory,” said Dr. David Saul, a psychiatrist in Toronto who treats fibromyalgia patients, and has seen dozens of bona fide cases turned down for benefits. “It is easy for the IME doctor to say, ‘I see no objective evidence.’ They say, ‘It’s all in your head.’ They crucify them on the IME. My patients come back and tell me the doctor was demeaning, condescending.” He, too, has seen patients lose their family, their home and their job and have to go on welfare. “They can’t go to work, but they have no income. If they try to go to work, they look like they were faking all along.” The same thing happens to brain injury patients, said John Kumpf, executive director of the Ontario Brain Injury Association. “It is not malevolence, but ignorance with doctors doing IMEs,” he said. “In the past eight and a half years, I have seen IMEs done on patients with brain injuries that were deplorable in their ignorance. Some were performed by orthopedic specialists who knew virtually nothing about brain injury. Others were done by practitioners whose motives would qualify them for the title of mercenaries. These are the doctors who flatly state there is no such thing as mild brain injury or who state that unless a person has a loss of consciousness, a brain injury has not occurred. These doctors violate the first principle of medical practice: First do no harm.” The Medical Post spoke to several leaders in the IME field to gather their perceptions of the climate in which they work. Dr. Sheldon Levy is the medical director of one of Canada’s oldest and largest IME companies, Riverfront Medical Services, in Toronto. “My concern as a physician is that the proper information is propagated to the general physician body. A lot of physicians who do this work, do it well; they add value to the insurance company and they add value to patients. That’s lost on some of the physicians who are quick to say it is not right to do IMEs.” The vast majority of Riverfront’s business is conducted without controversy, the run-of-the-mill work of assessing and quantifying disability. Less than 5% of cases go to arbitration, mediation or court. And Dr. Levy said he is proud of the work Riverfront does. The president of Canada’s only organized society of independent medical examiners agreed that IME work is most often done with the highest level of integrity. “We believe strongly in using our knowledge in the field, training, skills and experience to make impartial assessments,” insisted Dr. Michael Ross, a Toronto psychiatrist and president of the Canadian Society of Medical Evaluators (CSME). “At the core of our values are evidence-based medicine and the ability to be truly independent and impartial. Outside bodies may view it differently but these are the core values of what we do.” How many doctors in Canada do IMEs? CSME represents only a fraction of them. It has 74 members who are physicians; Dr. Ross estimated the number of doctors doing IMEs nationally must be in the tens of thousands. Doctors who do IMEs can spend as much as 100% of their work time on them, or as little as an occasional assessment. “Nobody really knows the scope of the market. The scope is massive.” There is a large middle layer in the field: firms that provide a stable of IME doctors for insurers to choose from. Some of the larger names in Canada are Aim Health Group, Care Point Medical Centres (formerly the Back Institute), Sibley and Associates, Crawford and Company, Medisys Health Group Inc., ACT Health Group Corp., ACTIVE Health Management, Canadian Trauma Consultants and Riverfront. Though no one knows exactly how big the IME industry is, or how it is apportioned, the bulk of IME work is bought and sold through about a dozen facilities, such as Riverfront, that have a licensed physician in their base office and a roster of physicians on contract. In addition, there are perhaps 50 companies that simply broker third-party services, but are not considered health-care facilities. Dr. Michel Lacerte is one of Canada’s most prominent IMEs. He said he finds the conduct of some of Canada’s IME brokers to be “distasteful.” He is a physiatrist and associate professor with the department of physical medicine and rehabilitation at the University of Western Ontario in London. “I have a major concern. They go to the insurance company and say, ‘I can get IMEs that you would like.’ They are volume discounters. The doctor only gets 50%.” He laments the fact that IME brokers are not regulated and that there are “mercenaries” working in the business. He and colleague Dr. François Sestier, a staff cardiologist at CHUM Hôtel-Dieu in Montreal, have started a diploma course in medico-legal medicine at the University of Montreal in an attempt to clean up the IME landscape (see the Medical Post, Jan. 23). Indeed, there was a wink-wink, nod-nod tone to many of the interviews we did about IMEs, as those in the know agreed there is a dark underbelly in the business. Toronto occupational physician Dr. Gabor Lantos said: “Of course there are cookie-cutter reports and bought opinions. We all know who they are.” Dr. Ross, CSME president, said he, too, knows of IME physicians who are not impartial. “There are psychiatrists and psychologists in town I can tell you what it says before I read it. I wonder why anyone uses these people? They’re bad apples.” But Dr. Ross doesn’t believe their behaviour reflects badly on other IMEs. “They gave themselves a bad name, not the profession.” What can be done about the bad eggs? We posed the question to CSME’s Dr. Ross, and he replied: “Even if you know exact numbers, how would you weed them out?” Dr. Arnold Voth, a specialist in internal medicine in Edmonton, said that one way to clean up the IME landscape would be to control the percentage of insurance income doctors can earn. “Nobody should be earning more as an IME than as a doctor seeing patients in the public system,” said Dr. Voth. “There should be no additional incentive to abandon real patients in favour of seeing patients for insurance companies.” IME fees are routinely five to 10 times what an attending physician earns, he said. “Actual office IMEs are a necessary part of life, but once you create an entire breed who are making a good living off it, there is a perverse incentive to be nothing more than a handmaiden to the insurance companies. As physicians we can’t allow that to happen.” Dr. Voth pointed out some Alberta doctors are doing IMEs outside the areas of medicine in which they are competent. “They are just outside the reach of discipline. To whom are they answerable? How are they called to account? What is the college doing?” The Medical Post called two of the country’s colleges—in Alberta and Ontario—to get a sense of how many IMEs have been reprimanded. The statistics do not seem dramatic. In 2005, for instance, the Alberta College of Physicians and Surgeons received 35 complaints about third-party doctors, up from 21 in 2001. Of the 35, two resulted in advice on how the doctors could improve their practices and avoid further complaints, and one resulted in a physician having to formally acknowledge the issue related to the complaint. In Ontario there were a 93 matters relating to third-party reports in 2004 and 67 in 2005. Three physicians were counseled about recommended changes, one received a written caution and one received an oral caution. Their names were not available. Several patients told us they had been mistreated by IME doctors, yet complaining to the college had yielded few results. In some cases, doctors had been cautioned repeatedly, but continued to practise as IMEs. Dr. Rocco Gerace, registrar of the College of Physicians and Surgeons of Ontario, said the college would take a dim view of IMEs providing biased opinions. “A physician has to provide an opinion not in any way based on who requests the opinion.” The fact that opinions are often controversial does not worry him. “Given a set of circumstances, there may be opinions that differ. Doctors come at it with different perspectives. That doesn’t mean there is anything wrong.” Physiatrists, he said, are good at attracting controversy because of what they do. “Physiatrists have a disproportionate number of complaints. This reflects, we think, the fact that they do a number of third-party assessments.” IMEs are tough to monitor because objectivity is impossible to measure. As Vancouver solicitor Brad Garside of law firm Paine Edmonds LLP put it, “The party or lawyer whose case is helped by the expert’s opinion might be apt to consider the expert to be both correct and objective; the party or lawyer on the other side whose case is harmed by the opinion might be apt to consider the expert to be not only wrong but also biased and an advocate for the other side. I’m not sure that it is something that could be objectively quantified.” The Medical Post visited the Toronto offices of the Insurance Bureau of Canada (IBC) to check out why the insurance industry needs doctors to re-evaluate patients, especially to assess injuries after auto accidents. Barbara Sulzenko-Laurie, director of health issues and policy for IBC, has statistics showing the scale of insurance company payouts. “We figure (auto) injuries . . . Canada-wide, on the private industry side, cost about $4 billion,” she said. This number is up dramatically from $3 billion in 2000. Insurance companies certainly don’t want to pay benefits for patients who are malingering, and this is a real threat, reported the IBC. According to Sulzenko-Laurie, between 15% and 22% of injury claims are fraudulent (including inflating the severity of an injury), costing the insurance industry more than $430 million a year. It is up to Canada’s IMEs to figure out who is faking, but the answer is not always black and white. For instance, one of the debates raging among IMEs these days is the exact definition of catastrophic impairment. The stakes are enormous for insurance companies. If a patient is deemed catastrophically impaired, his or her maximum medical and rehabilitation costs rise to $1 million in rehab and $1 million in attendant care, with no time limit. Yet the law, in Ontario at least, is somewhat open to interpretation. Catastrophic impairment, according to the Statutory Accident Benefits Schedule, results from (a) paraplegia or quadriplegia, (b) amputation of both arms or legs, (c) total and permanent loss of an arm and a leg, (d) total loss of vision, (e) certain brain injuries, (f) injuries that result in 55% or more impairment of the whole person, or (g) impairment due to a mental or behavioural disorder. But here’s the rub: Can you combine mental impairment with physical impairment to get 55%, by adding subsections (f) and (g)? “We believe there are gamesters trying to increase the number of catastrophic impairments by interpreting the regulations liberally,” said Sulzenko-Laurie. And doctors are caught in the middle. Physicians and lawyers who attended the recent “Litigating Catastrophic Disability and Damages” medico-legal conference in Toronto are puzzled. Even Dr. Arthur Ameis, a physiatrist and medical director of the Multidisciplinary Assessment Centre in Toronto, and one of Canada’s foremost independent medical examiners, was perplexed by the IME’s role. “The problem is we’re being asked to act like lawyers and we’re not lawyers. We’ve been slapped on both sides of our face in some cases. Are you combining (f) and (g)? There is yet to be a judicial review of how to use (g),” he told the audience. A consolation for IMEs, of course, is that they are well paid for their trouble. Dr. Ameis’s clinic charges $3,600 for a basic neuropsychological assessment, $1,300 for orthopedic, physiatric and neurological assessments and $1,870 for a psychiatry assessment. Fees are paid by whichever party orders the independent exam. It is not unusual in any given case to employ many doctors on both sides for many hours. Dr. Ross told us about a case he was working on as an IME with 10 or 12 other doctors. Each time a new doctor was added and gave an opinion, each of the other physicians was asked to provide further comment. “The case was cancelled Monday. Ballpark, I’d say doctors spent 350 hours on it before court occurred. What did those hours cost? The OMA-recommended minimum for IMEs is $435 an hour,” said Dr. Ross. If a case goes to court, the witness fee is typically $600 to $650 an hour. The more grave the injury, the more serious the dollars. “A bill from a clinic determining whether a patient suffered catastrophic impairment could run as high as $40,000,” said Sulzenko-Laurie. For doctors doing IMEs on behalf of insurance companies, is the incentive that getting the company off the hook will result in more work? Sulzenko-Laurie explained the insurance companies’ role: “They are not allowed to say to the doctor, ‘This is what we want.’ We’re hiring medical practitioners who are bound by standards of practice.” The Medical Post asked Hugh Brown, a lawyer with Toronto insurance defence firm Bell Temple, about industry norms. He said that while it used to be common practice for law firms to tell doctors what they wanted, and even to write the reports, that is ordinarily not done anymore. “Now, it is proper practice to have a covering letter asking for their opinion on the nature of the injury sustained and the impact on the patient’s working life. Can they work with that type of pain or not? I don’t give prior input. Here’s the file. Good, bad or indifferent, I accept the result,” said Brown. Dr. Ross has been doing IMEs for more than 15 years and said, “There have been next to no attempts to influence my opinion.” Sulzenko-Laurie frowned on the idea of interference with an IME physician’s opinion. “If there is an attempt to prejudice the witness, there will be punitive damages. The court can say, this is the award of $100,000 in lost income, $200,000 in pain and suffering and because the company was a bad bastard, X number of dollars in punitive damages to claimant and lawyer. There is a strong incentive for insurance companies not to engage in this type of activity.” The IME also faces the challenges of cross-examination, as Dr. Darrell Ogilvie Harris noted at the medico-legal conference. He is an orthopedic surgeon at Toronto Western Hospital who is often called upon to provide independent exams. Even after doing many of them, he said he still finds it intimidating to be in court. “I’m attacked personally.” he said. As doctors, “we’re used to having the final word. I don’t like confrontational situations.” He stressed to the audience of physicians and lawyers that it is very important for IMEs to have proper training for the case at hand. They have to be a specialist in the correct area, have the proper training and practice and carry out useful examinations. “Does this doctor work with quadriplegics or just sit in an ivory tower pontificating?” he asked. Dr. Ogilvie Harris said when he gives an expert opinion, he will often take the middle ground so that he is not susceptible to attack. Dr. Lantos said that what is often up for debate is whether a patient can go back to work, and that can be a grey zone. IMEs and treating physicians should be as exact as possible about the patient’s capabilities. “Doctors write notes that say things like, ‘Patient has been off X weeks and can now go back to light duties.’ What are light duties? We don’t know. What are modified duties?” A patient’s resources to find reasonable work after being ill or injured depends so much on context: union involvement, collective agreements, how easily they can be transferred, whether they do shift work, their seniority and geographic considerations, said Dr. Lantos. “If doctors would stick with impairment as opposed to adjudicating disability, we’d avoid 90% of this.” The National ME/FM Action Network, which supports patients with myalgic encephalomyelitis/chronic fatigue syndrome and fibromyalgia, keeps a close eye on IME decisions in Canada, as does the Canadian Injured Workers Society. The ME/FM network has made recommendations to change the IME climate in the country, some of which have been tried with success in Colorado. First of all, they suggest operating IMEs through an independent body outside the insurance industry, and establishing a registry of qualified health-care providers. They also recommend a standard fee for IMEs. Like Dr. Voth, the network takes a dim view of doctors who only do IMEs and no other clinical work. Doctors cannot spend more than one-quarter of their time doing IMEs, suggested the network, and must have an active patient practice. In addition, the IME must be of the same specialty as the treating doctor, and their practice must be located close to where the patient lives. On the industry side, Sulzenko-Laurie doesn’t recommend sweeping changes, but a constant vigilance. “The solution is to just keep working at it. The responsibility to monitor the system is incessant without end by industry and regulators. We keep tweaking it.” Despite the bad rap some IMEs get, Dr. Ross said most are honest, fair and impartial. “The headaches that come with this work surpass most other doctor work,” he said. “We do it because we are interested in the diagnosis process. As independent physicians, we have more data than is usually available. We don’t have a waiting room full of people. Looking at it from an arm’s length, I can see things others haven’t noticed.” The Medical Post (subscription required) (For more about Independent Medical Examiners, please see our Medical Professsionals page.) Back to Article Index |
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