Many Indiana nursing homes understaffed

Associated Press

March 8, 2010

INDIANAPOLIS — Many of Indiana’s nursing homes employ fewer critical staff members than are needed to care for often-frail residents — and staffing levels are particularly low at the state’s for-profit nursing homes, a newspaper has found.

The Indianapolis Star reported Sunday that Indiana has among the nation’s highest percentages of for-profit chain nursing homes. And those for-profit homes dominate the ranks of the state’s most poorly performing homes — 35 out of 52.

The Star reviewed thousands of pages of nursing home documents and analyzed data compiled by regulators and provided by the industry. Its investigation found a system that tolerates nursing homes that skimp on quality to maintain profits.

It found that pay and benefits are low, especially in for-profit homes, for the grueling work of caring for elderly and other frail residents, and positions often sit empty.

In some cases, the result has been a lack of care, including the case of a South Bend nursing home where staff failed to keep a cut on a woman’s leg clean and it became so infected it had to be amputated. The woman later died from the infection.

The Star’s report comes after federal officials in August identified the state as having the most poor-quality nursing homes of any state in the U.S.

The Star said its investigation revealed the root cause of the state’s ranking: That the most critical caregivers are more scarce in Indiana nursing homes than anywhere else.

Indiana ranks 51st — lower than every other state and the District of Columbia — in the amount of time certified nursing assistants spend with residents. The number of hours registered nurses spend with residents ranks only slightly better and the Star said that profit appears to play a key role in the disparity.

“Overall, those statistics tell me that we’re in an acute state of crisis here, and this absolutely needs to be an emergency call to action,” said Robyn Grant of the state advocacy group United Senior Action. “Enough is enough. We can’t wait.”

Indiana’s nursing home industry ranges from homes owned by chains, some with CEOs that earn millions of dollars a year, to nonprofit homes operated by the Little Sisters of the Poor.

Certified nursing assistants are nursing homes’ front-line caregivers, the ones who help residents into wheelchairs, take them to the bathroom and generally watch over them.

The Star found understaffing is the norm in many Indiana homes where, on average, CNAs spend just less than 15 hours a week with each resident. The national average is 17 hours a week.

Residents get 1.27 hours less a week with CNAs in for-profit homes than in the state’s other homes — mainly nonprofits. And at for-profit homes that are part of regional or national chains, that difference is even greater — 1.55 hours.

Last year’s U.S. Government Accountability Office report named 580 U.S. nursing homes as the “most poorly performing,” with 52 of those in Indiana — about 10 percent of Indiana’s total number of nursing homes.

The GAO report concentrated on violations found by inspectors, but that report isn’t the only indicator of trouble.

The average number of violations state health inspectors found per facility increased 71 percent from 2003 to 2008, according to a November national analysis led by Charlene Harrington, a University of California researcher who is one of the nation’s top experts in the field of long-term care.

The national average rose by 8 percent during that time.

During the same period, the percentage of Indiana homes cited for problems that placed residents in jeopardy or resulted in actual harm grew from 32 percent to 45 percent.

Nationwide in 2008, only a quarter of all homes were cited for such severe problems.

There are about 40,000 Hoosiers in the state’s nursing homes — with taxpayers picking up the tab for about two-thirds of them at an annual cost of $1 billion. Both numbers are predicted to explode as aging baby boomers become infirm.

State officials hope changes to the Medicaid reimbursement plan in January will encourage nursing homes to improve, but the head of the state’s Medicaid oversight commission is still concerned.

“We’ve got to do something about it,” said state Rep. Bill Crawford, D-Indianapolis, who plans to bring up the quality issue when the commission meets this summer.

Nursing home industry officials acknowledge that many Indiana facilities struggle to maintain staffing and provide high-quality care, but they say operators face many challenges, including government reimbursement rates that are inadequate to cover costs.

They also say operators have stepped up efforts to improve quality.

“It (the GAO report) was telling us what we already suspected and what we were already dealing with,” said Robert Decker, president of the nursing home industry group Hoosier Owners & Providers for the Elderly.

Two Nursing Home Chains Pay $14M to Settle Kickback Probe

John Commins, for HealthLeaders Media, March 1, 2010 Atlanta-based Mariner Health Care Inc., subsidiary

SavaSeniorCare Administrative Services LLC, and their principals will pay the federal government and several states $14 million to settle kickback allegations, the Justice Department has announced. Federal prosecutors alleged that the defendants solicited kickback payments from pharmacy giant Omnicare in exchange for agreements by Mariner and Sava to continue using Omnicare’s pharmacy services for 15 years. In November, the federal government, several states, and Omnicare entered into a $98 million settlement that resolved Omnicare’s civil liability in the investigation, according to the Justice Department. “The allegations raised by the government concern a transaction that occurred before SavaSeniorCare commenced operations, and well before the current operations management team was in place,” said SavaSeniorCare in a statement. “SavaSeniorCare did not contribute to the settlement amount. The company remains committed to providing quality care and services to more than 18,000 individuals every day.”

Federal investigators alleged in a whistleblower suit filed last year that Omnicare, Mariner, Sava, and principals Leonard Grunstein, Murray Forman, and Rubin Schron arranged for Omnicare to pay Mariner and Sava $50 million in exchange for the right to continue providing pharmacy services to the nursing homes, which together constituted one of Omnicare’s largest customers, according to the government. They allegedly tried to disguise the kickback as a payment to acquire a small Mariner business that had two employees and was worth far less than $50 million. Investigators said Omnicare paid $40 million before acquiring the Mariner business. At the same time, Omnicare obtained 15-year pharmacy contracts from Mariner and from Sava, a new nursing home chain that Grunstein and Forman created from the Mariner chain, according to the Justice Department.

Prosecutors alleged that Grunstein and Forman illegally tied the new pharmacy contracts to Omnicare’s purchase of the small Mariner business unit, and that the total $50 million purchase price for the business unit actually was a kickback by Omnicare to keep the future business of Mariner and Sava, according to the feds. Approximately $7.84 million of the settlement will go to the federal government, while $6.16 million has been allocated to several state Medicaid programs that the federal government did not identify. Federal prosecutors also alleged that after the government issued subpoenas about the transaction in 2006, the defendants created backdated documents to hide the kickback. “Kickbacks in all forms are insidious because they distort medical decisions affecting Medicare and Medicaid beneficiaries,” said HHS Inspector General Daniel R. Levinson. “We will vigilantly scrutinize attempts to disguise kickbacks as legitimate business transactions and work to hold payers and recipients of kickbacks accountable.”

Mariner has entered into a corporate integrity agreement with HHS, which retains the authority to exclude Sava, Grunstein, Forman, and Schron from participating in Medicare, Medicaid, and other federal healthcare programs. wo Nursing Home Chains Pay $14M to Settle Kickback Probe John Commins, for HealthLeaders Media, March 1, 2010 Atlanta-based Mariner Health Care Inc., subsidiary SavaSeniorCare Administrative Services LLC, and their principals will pay the federal government and several states $14 million to settle kickback allegations, the Justice Department has announced.

Federal prosecutors alleged that the defendants solicited kickback payments from pharmacy giant Omnicare in exchange for agreements by Mariner and Sava to continue using Omnicare’s pharmacy services for 15 years. In November, the federal government, several states, and Omnicare entered into a $98 million settlement that resolved Omnicare’s civil liability in the investigation, according to the Justice Department. “The allegations raised by the government concern a transaction that occurred before SavaSeniorCare commenced operations, and well before the current operations management team was in place,” said SavaSeniorCare in a statement. “SavaSeniorCare did not contribute to the settlement amount. The company remains committed to providing quality care and services to more than 18,000 individuals every day.”

Federal investigators alleged in a whistleblower suit filed last year that Omnicare, Mariner, Sava, and principals Leonard Grunstein, Murray Forman, and Rubin Schron arranged for Omnicare to pay Mariner and Sava $50 million in exchange for the right to continue providing pharmacy services to the nursing homes, which together constituted one of Omnicare’s largest customers, according to the government. They allegedly tried to disguise the kickback as a payment to acquire a small Mariner business that had two employees and was worth far less than $50 million. Investigators said Omnicare paid $40 million before acquiring the Mariner business. At the same time, Omnicare obtained 15-year pharmacy contracts from Mariner and from Sava, a new nursing home chain that Grunstein and Forman created from the Mariner chain, according to the Justice Department. Prosecutors alleged that Grunstein and Forman illegally tied the new pharmacy contracts to Omnicare’s purchase of the small Mariner business unit, and that the total $50 million purchase price for the business unit actually was a kickback by Omnicare to keep the future business of Mariner and Sava, according to the feds.

Approximately $7.84 million of the settlement will go to the federal government, while $6.16 million has been allocated to several state Medicaid programs that the federal government did not identify. Federal prosecutors also alleged that after the government issued subpoenas about the transaction in 2006, the defendants created backdated documents to hide the kickback. “Kickbacks in all forms are insidious because they distort medical decisions affecting Medicare and Medicaid beneficiaries,” said HHS Inspector General Daniel R. Levinson. “We will vigilantly scrutinize attempts to disguise kickbacks as legitimate business transactions and work to hold payers and recipients of kickbacks accountable.” Mariner has entered into a corporate integrity agreement with HHS, which retains the authority to exclude Sava, Grunstein, Forman, and Schron from participating in Medicare, Medicaid, and other federal healthcare programs.

By CATHLEEN F. CROWLEY, Staff writer
Click byline for more stories by writer.

First published: Monday, November 23, 2009
 
WASHINGTON – A short but fiery speech made on the floor of the House of Representatives has raised the hopes of patient safety advocates across the nation.
Rep. Bruce Braley, a second-term Democrat from Iowa, gave a speech about medical errors moments before the House voted on the health reform bill earlier this month.

Braley, 52, a trial lawyer who specializes in malpractice, said he had two minutes to prepare his speech. As he spoke, he was taunted by Republicans shouting “trial lawyer.” But Braley impressed Helen Haskell, whose son died from a medical error.

“I was very pleased that somebody was standing up for patient safety. I thought the heckling was unbelievable,” said Haskell, of South Carolina. Her son Lewis Blackman, 15, died in 2000 after a minor surgical procedure.

Haskell called Braley’s office the next day to thank him.

Patient safety activists are cautiously optimistic that Braley may be the champion they need for their cause. “He’s definitely an emerging leader and he seems to be very passionate about (patient safety)” said Lisa McGiffert, who heads Consumers Union’s Safe Patient Project.

“Who will speak for the patients?” Braley said in his House speech. Referring to an Institute of Medicine report, Braley said “They told us the most significant way to reduce the cost of medical malpractice is to emphasize patient safety by reducing the number of preventable medical errors.”

Consumers Union invited Braley to speak at its conference on patient safety in Washington, D.C., last week.

While some members of Congress have led efforts to increase the public reporting of hospital-acquired infections, few have embraced the larger issue of medical errors. Nearly 200,000 Americans die each year from errors made during their medical care and from infections acquired in the hospital. The lack of progress in reducing errors was the subject of a Hearst Newspapers series that can be read at www.deadbymistake.com.

“I am so grateful to Hearst publications for their Dead by Mistake series to put the human face on the problems that bring you all here today,” Braley said to the audience at the Consumers Union conference. Braley said he has passed the series to other members of Congress to bolster support for patient safety initiatives in the health reform bill.

Braley grew up on a small farm in Iowa. His father was seriously injured in a fall from a grain elevator and his mother went back to work as a teacher to support the family. His father eventually went into the insurance business, while Braley began working in his teens to help the family.

He was a successful lawyer in Waterloo, Iowa, when he ran for an open seat in the House of Representatives in 2006.

In his short political career, Braley has rapidly climbed the ladder of leadership in the House.

Braley founded and chairs the Populist Caucus, which is a congressional group devoted to economic issues of the middle class. He was named vice chairman of the Democratic Congressional Campaign Committee, the campaign arm for House Democrats. Braley leads the committee’s “Red to Blue” effort to capture Republican House seats.

During his second term, Braley was appointed to the powerful House Energy and Commerce Committee.

He also is past president of the Iowa Trial Lawyers Association.

“When my colleagues chose to attack me by screaming ‘trial lawyer, trial lawyer’ it wasn’t affecting me in the least,” Braley told advocates last week at the Consumers Union conference. “I was thinking of people that need someone to stand up for them when it comes to important issues of patient safety.”

Braley said he fought for an initiative in the House health reform bill that will require Medicare to revamp its reimbursement system from a fee-for-service model to a pay-for-performance model. He believes it will reduce errors and improve quality, and he said he hopes to sponsor more legislation to improve patient safety.

“Unless medical consumers know that they have a system that is going to protect them, that is going to give them access to information to make them informed consumers,” Braley said, “we will have missed a great opportunity to transform our system of health care delivery.”
 

August 24, 2009
 
By KATIE ZEZIMA – New York Times
MAMARONECK, N.Y. — For 10 days in June, Kristen Murphy chose to live somewhere she and many others fear: a nursing home.

Ms. Murphy, who is in perfect health, had to learn the best way to navigate a wheelchair around her small room, endure the humiliation that comes with being helped in the bathroom, try to sleep through night checks and become attuned to the emotions of her fellow residents.

And Ms. Murphy, 38, had to explain to friends, family and fellow patients why she was there.

Ms. Murphy, a medical student at the University of New England in Biddeford, Me., who is interested in geriatric medicine, came to New York for a novel program that allowed her to experience life as a nursing home patient.

Students are given a “diagnosis” of an ailment and expected to live as someone with the condition does. They keep a daily journal chronicling their experiences and, in most cases, debunking their preconceived notions.

The program started in 2005 after a student approached Dr. Marilyn Gugliucci, the director of geriatrics education at the medical school. “ ‘Dr. G,’ ” she recalled the student saying, “ ‘I would like to learn how to speak with institutionalized elders.’ What came out of my mouth was, ‘Will you live in a nursing home for two weeks?’ ”

To Dr. Gugliucci’s surprise, she found nursing homes in the region that were willing to participate and students who were willing to volunteer. No money is exchanged between the school and nursing homes, and the homes agree to treat students like regular patients.

“My motivation is really to have somebody from the inside tell us what it’s like to be a resident,” said Rita Morgan, administrator of the Sarah Neuman Center for Healthcare and Rehabilitation here, one of the four campuses of Jewish Home Lifecare.

“But she is really there to study herself, her own feelings about living in a nursing home,” Ms. Morgan added, referring to Ms. Murphy.

Geriatric specialists hope the program and others like it help generate interest in the profession, one of the most underrepresented fields in medicine. Medical schools and residencies require little to no geriatric training, and many students are reluctant to get into the field because it is among the lowest paid in medicine.

In 2005, there was one geriatrician for every 5,000 people over 65, according to the American Geriatrics Society; by 2030 that ratio is expected to increase to one for every 8,000 patients. Geriatricians must participate in a two-year fellowship program after medical school to become certified. In 2007, only 253 of 400 fellowship slots were filled, and only 91 of the physicians graduated from medical school in the United States.

“It’s kind of a crisis,” said Dr. Cheryl Phillips, president of the society. “I don’t think many seniors recognize this.”

Like many medical students, Ms. Murphy was scared of nursing homes. The feeling began when, as a young adult, she visited her grandmother, who had Alzheimer’s disease.

“I think nursing homes are scary,” she said, “but I don’t think you can be a good doctor if you’re scared of the place where a lot of your patients live.”

The first few days, which included filling out paperwork, undergoing a full-body mole and sore check, eating pureed foods and being raised out of bed with a lift, did nothing to validate her decision. When she wedged her wheelchair into a corner and could not get out, she cried in frustration.

“All I wanted to do was shut my door and stay in here,” said Ms. Murphy, whose “diagnosis” was a mild stroke that affected her right side, difficulty swallowing and chronic lung disease. “But I understood I had to go out.”

Not everyone does. Some patients want to talk for hours, while others act out, like a woman who pinched Ms. Murphy as hard as she could. Many sit in the hallway by the nurse’s station each day because it is a hub of activity. Emotions run high.

Ms. Murphy said she soon learned that many patients cried because they knew that they would most likely never live anywhere else, or because they missed family and their old life.

“At times I felt really lonely and got depressed,” she said. “Sometimes it was an emotional roller coaster, up and down, up and down.”

No one said a word the first time Ms. Murphy showed up at the daily bingo game. She started to talk to anyone who would listen. And she was surprised what happened.

First she bonded with Camille Stanley, the “queen bee” of the social scene. Then she found Dr. Thomas N. Silverberg, 89, a former internist and arthritis specialist with advanced rheumatoid arthritis. “My specialty is slowly killing me,” Dr. Silverberg said.

The two talked for hours about life and medicine. Unlike the friendships she makes as an adult, slowly nurtured over dinners and drinks, bonds in a nursing home, where there is nothing to do but talk, are forged quickly and deeply.

“When I came in, I was worried about working with older folks because I was afraid I wouldn’t be good at it,” Ms. Murphy said. “Now, if anything, I’m worried I’ll love them too much and it will really hurt to work with folks at the end of their lives.”

Most residents knew why she was there. During her going-away party they presented her with a big card, and shouts of “We love Kristen” were heard throughout.

The program has solidified Ms. Murphy’s desire to work with older people. And the hardest lesson she learned — that for some people, it is better to be in a wheelchair or to have limited mobility — will make her become a better doctor, she said.

“As a doctor, my job is to help patients live the life they want to,” she said. “And if they’re in pain, you have to say ‘That’s O.K. if you want to spend your time in a wheelchair.’

“For me that’s such a different place to be. Because I hate this chair. It still startles me that that’s the choice.”

Ms. Murphy said the care she received at the home was outstanding. But there were things that could use improvement: she did not realize she could ask for things like soda, and she felt that shower bars were too high for someone in a wheelchair. She also told the staff at a debriefing session that families should be included in more activities.

Dr. Phillips of the American Geriatrics Society, which is not involved with this program, said the challenge was to see “how this replicates everywhere else and how enthusiastic medical students are to take this on.”

Another of the 10 students who have gone through the program, William Vogt, spent 10 days last summer in a nursing home at the Veterans Affairs hospital in Augusta, Me. Mr. Vogt, who spent a day wheeling around with petroleum jelly smeared on his glasses and cotton stuck in his ears, said he was particularly struck by the fact that many patients considered the nursing home to be home and the staff “a second family.”

Mr. Vogt said the little things counted, like lowering nameplates so patients could locate their rooms and not putting a remote on top of a television, out of reach.

“There’s a little part of it that works its way into everything I do, from patient interaction and awareness of how I come across to what I say,” said Mr. Vogt, a medical student doing clinical work at a hospital in Watertown, N.Y. “There’s this shift of the humanity of it.”

ConsumerAffairs.com – July 7, 2009

Medical malpractice payments were at or near record lows in 2008, but a study released by Public Citizen suggests the decline almost certainly indicates that a lower percentage of injured patients received compensation, not that health safety has improved.

Medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim, according to Public Citizen’s analysis of medical malpractice payment data and the best available patient safety estimates.

For the third straight year, 2008 saw the lowest number of medical malpractice payments since the federal government’s National Practitioner Data Bank began tracking such data in 1990. The 11,037 payments in 2008 were 30.7 percent lower than the average number of payments recorded by the NPDB in all previous years.

Ratios of payments per capita and per physician have fallen even lower compared with historical norms. There were 13.5 payments per million physicians in 2006 (the most recent year for which the number of physicians is available), which is 29.2 percent lower than the average in previous years

The value of payments in 2008 (as distinct from the number of payments) was the lowest or second lowest on record, depending on the method used to adjust for inflation.

The cost of the medical malpractice liability system — if measured broadly by adding all malpractice insurance premiums — fell to less than 0.6 percent of the $2.1 trillion in total national health care costs in 2006, the most recent year for which the necessary data to make such comparisons are available.

The cost of actual malpractice payments fell to 0.18 percent — one-fifth of 1 percent — of all health care costs in 2006. Annual malpractice payments have subsequently fallen from $3.9 billion in 2006 to $3.6 billion in 2008, but comparative data on total health care costs are not available.

“Any way you measure it, medical liability accounts for less than 1 percent of the country’s health care costs, and the vast majority of victims receive no compensation whatsoever,” said David Arkush, director of Public Citizen’s Congress Watch division. “These are people who died or were left with serious permanent injuries — out of work, with enormous medical costs for the rest of their lives — and they and their families are getting nothing from the doctors and hospitals responsible.”

The amount paid out for medical malpractice generally goes to patients with the most serious injuries. More than 80 percent of the money paid out for medical malpractice in 2008 was for cases involving “significant permanent injuries”; “major permanent injuries”; injuries resulting in quadriplegia, brain damage or the need for permanent care; or death, according to NPDB reporting.

Despite the hysteria surrounding debates over medical malpractice litigation, experts have repeatedly concluded that several times as many patients suffer avoidable injuries as those who sue.

The best known such finding was included in the Institute of Medicine’s (IOM) 1999 study, “To Err Is Human,” which concluded that between 44,000 and 98,000 Americans die every year because of avoidable medical errors.

Fewer than 15,000 people (including those with non-fatal outcomes) received compensation for medical malpractice that year, and in 2008, the number receiving compensation fell to just over 11,000.

There is no evidence that there are fewer errors today. Most of the IOM’s safety recommendations have been ignored. Meanwhile, various safety indicators continue to raise alarms.

For example, the Joint Commission, which accredits hospitals, learned about 116 occasions in which surgeons operated on the wrong part of a patient’s body in 2008 and 71 times in which foreign objects were left inside patients’ bodies. Health experts call these “never events,” meaning that they simply should not happen at all.

Proposals to limit patients’ legal rights have sprung up in the debate over health reform. The most popular idea this year is to establish special tribunals that would theoretically offer payments to more patients but in smaller amounts.

Policy makers who wish to cut costs should steer clear of these proposals, Arkush said. The high volume of medical errors and the current infrequency of payments to victims ensure that proposals to increase the number of payments would inevitably cost far more than the current system.

The only economically feasible and, indeed, humane way to improve the system is to reduce the number of senseless and tragic medical errors in our hospitals. In its report, Public Citizen calls on Congress to put safety measures in place that would set the nation on course to meet the IOM’s goal of cutting the number of avoidable deaths in half in five years.

David Lazarus – LA Times

May 3, 2009

If you have a credit card, a cellphone or even just a job, chances are you’ve already signed away your right to sue if something goes wrong.

Mandatory arbitration clauses have become a routine part of the fine print in most financial, telecom and employment contracts, as well as numerous other customer agreements.

They typically require you to abandon the right to a jury trial or class-action lawsuit, and to agree instead to take any grievances to a professional arbitrator.

But because of the way the system is set up, critics say, arbitration often favors the company and not the individual. So the likelihood of a positive outcome (for you) can be less than if you had pursued litigation.

Consumer advocates, sensing a shift in the political winds under President Obama, believe the time is right to challenge mandatory arbitration and have banded together to support legislation ending the practice.

“We have no problem with arbitration,” said David Arkush of the watchdog group Public Citizen. “We just want people to be able to choose it if they want it, rather than having it be required.”

He was speaking on behalf of the Fair Arbitration Now Coalition, an organization of consumer and community groups. The coalition released poll results last week showing most people have no idea they’re giving up a constitutional right when they sign contracts containing an arbitration clause.

When details of mandatory arbitration are made clear, 59% of Americans say they oppose the practice and would back legislation requiring that arbitration be voluntary, the poll found.

Easier said than done. Although bills have been introduced in the House and Senate ending mandatory arbitration, they’re strongly opposed by some of the most powerful industries in the country, including banks, telecom providers and insurers.

“We know it will be tough,” Arkush said. “But we’ve probably got as good a chance now as we’ve ever had.”

One of the biggest problems with mandatory arbitration clauses is their prohibition on joining class-action lawsuits. This effectively takes away consumers’ single most powerful tool in seeking redress from companies for relatively minor grievances.

More often than not, such issues would be too costly to pursue in court individually. Class-action suits allow consumers to join together in dealing with a deep-pocketed business, leveling the playing field.

Another key problem with mandatory arbitration is that the company generally gets to pick the arbitrator, often a retired judge. These arbitrators thus have an incentive to keep the company happy if they want future employment.

“If a retired judge issued a significant anti-insurance decision, for example, there is no chance an insurance company would use him again,” said Jeffrey Ehrlich, a Claremont attorney who has handled numerous arbitration cases.

“The deck is stacked against consumers because the arbitrators don’t want to offend the people who hire them.”

Fontana resident John Ramirez told me he experienced just such a situation after going into mandatory arbitration with his former employer, Tenet Healthcare Corp., in 2003.

Ramirez, 37, believed he’d been discriminated against because problems with a prosthetic leg forced him to miss about six months of work. He lost his own leg in a childhood accident.

“They started giving me a real hard time after I came back,” Ramirez recalled. “I was forced to work the graveyard shift.”

He filed an arbitration claim seeking back pay and compensation for his claim of discrimination. But the arbitrator ruled against him.

Ramirez thinks a jury would have been more sympathetic.

“If I could have sued, I might have won,” he said.

Tenet declined to comment. But Wayne Kessler, a spokesman for the American Arbitration Assn., a leading arbitration provider, said procedures are in place “that are fair and neutral, and which give all parties to a dispute an equal voice in the selection of an arbitrator.”

Or maybe not.

Geoff Lysaught, director of the Searle Civil Justice Institute at Northwestern University School of Law, said researchers have found evidence that companies involved in repeated arbitrations tend to receive more favorable outcomes than infrequent participants.

He said this may not necessarily reflect the fact that “repeat players” represent more revenue for arbitrators.

“The reason they may win more often is because they only arbitrate cases they think they can win,” Lysaught said. “They settle all the others.”

He said this theory might also explain why consumers tend to win about half the cases they bring to arbitration, whereas companies win nearly 84% of cases they initiate.

Perhaps. Or perhaps, as consumer advocates and lawyers say, it’s because professional arbitrators know how their toast is buttered, and they have a built-in bias toward pleasing companies.

Seems to me that if arbitration is indeed fair to everyone, it shouldn’t have to be crammed down consumers’ throats. Arbitration should be offered as a cost-effective and relatively speedy alternative to litigation. But it should be just one option available, just as filing a lawsuit should be an option.

By the same token, no company should be permitted to deny customers their right to a jury trial or to participate in class-action lawsuits.

In a perfect world, such things wouldn’t be necessary.

But this isn’t a perfect world.

By: Ashby Jones – Wall Street Journal 

And now for a little curmudgeonly rant: We don’t like movie trailers. Never have. We don’t like that they hold you captive before the movie starts, often give away far too much of a movie’s plot, and we really don’t like that these days they can delay the start of the movie by 15 or 20 minutes. (Part of it’s our own fault — we always feel so silly having finished our Raisinets before the movie’s opening credits roll.)

Well, now comes a movie trailer the likes of which we might actually get to the theater early for: a law-related movie trailer. That’s right. Next month, the U.S. Chamber of Commerce will unveil four short clips to run before feature films in Washington, D.C.-area movie houses. The clips, which you can watch here, all tell a story of supposed “Lawsuit Abuse” — cases in which people were allegedly dragged into the legal system with the filing of a frivolous lawsuit. One features the parents of a 7-year old child who was sued after a skiing accident. Another features a small business that was sued after a goose that was staying on its property snapped at a passer-by.

“Lawsuit abuse and the harm it brings to everyday Americans and small businesses is one of the great American tragedies,” says Lisa Rickard, the president of the Chamber’s Institute for Legal Reform, formerly of Akin, Gump. That’s why the silver screen is the perfect venue for these Faces of Lawsuit Abuse short films.”

According to a U.S. Chamber spokesman, the trailers will air “for at least a month” at four theaters in D.C. — including the Regal Gallery Place Stadium 14 (pictured), which is very close to the headquarters of the American Association for Justice, a main lobbying arm for the nation’s trial lawyers. After that, says a U.S. Chamber spokesman, they’ll move to a handful of theaters outside the Beltway.

We checked in with a spokesman for the AAJ, Ray DeLorenzi, who gave us this fun little quote. “With U.S. Chamber’s core membership receiving all those taxpayer bailouts, they must be flush with cash to waste on PR stunts like this. Like their lobbying agenda, these ads are rated NC – not suitable for consumers.”

Now, we’ll just sit back and hope that someday the AAJ’s unveils its own movie trailers. Ah, such fun.

Janet Brooks, Canadien Medical Association Journal

After years of warnings from former United States president George Bush that frivolous medical malpractice lawsuits were driving doctors out of practice and inflating the cost of US health care, the weight of evidence now points to preventable errors — not misguided lawsuits — as the real source of the concerns.

In 6 consecutive State of the Union addresses, beginning in 2003, Bush urged the US Congress to pass what he called medical liability reform. He justified that reform, which urged the capping of pain-and-suffering awards at US$250 000, by touting the need to ensure access to health care and to control rising costs.

The reform campaign was conducted against a backdrop of rising insurance premiums for US doctors. Despite the fact that volatile premiums have largely been found to be products of the insurance underwriting cycle (a cycle of gains and losses within the insurance industry), Bush, some Republicans, medical societies, hospitals and insurers exploited the “crisis,” pushing lawmakers to make it more difficult for injured patients to sue doctors.
In fact, there is no evidence that doctors were hit with increasing numbers of malpractice claims during 2001-2004. Over the past 15 years, states that require insurers to file reports on malpractice claims indicate that rates have remained flat, or have even declined, relative to economic growth and population increases.

The real problem, says Tom Baker, a law professor at the University of Pennsylvania, is “not too much litigation, but too much malpractice. … The idea that Americans are suit-happy, litigation-crazy, and ready to rumble in the courts is one of the more amazing myths of our time.”

In his 2005 book The Medical Malpractice Myth, Baker claims doctors, patients, legislators and voters have been misdirected and should be seeking ways to prevent malpractice. “It’s not pretty to say, but doctors and nurses make preventable mistakes that kill more people in the United States every year than workplace and automobile accidents combined.”

The best-available research supports Baker’s position. Most Americans injured by medical malpractice do not sue. Most lawsuits are not frivolous, and courts efficiently weed out weak claims. Jury awards have not spiralled out of control, and lawsuits have not reduced access to doctors.

In a landmark study, the Institute of Medicine of the National Academy of Sciences estimated that medical errors kill up to 98 000 US hospital patients each year (Kohn LT, Corrigan JM, Donaldson MS, editors. To Err is Human: Building a Safer Health System. Washington, DC; 2000). In 2004, Healthgrades, an independent health care ratings company, reported nearly double that figure. Its examination of 37 million patient records from all 50 states, representing 45% of all US hospital admissions, found 195 000 hospital deaths from preventable medical errors annually between 2000 and 2002, (www.healthgrades.com).

“It’s really an epidemic,” says Joanne Doroshow, who heads the New York-based Center for Justice and Democracy, a nonprofit, nonpartisan consumer rights organization. “It’s a terrible problem we have in this country, and I imagine around the world. Hospitals are dangerous places.”

Evidence that medical malpractice in the US greatly exceeds malpractice lawsuits has been available since 1974, when California’s medical and hospital associations sponsored a study intended to buttress their efforts to get lawmakers to pass tort reform. Instead, it found that doctors and hospitals negligently injured 0.8% of hospital patients (Mills DH, editor. Report on the Medical Insurance Feasibility Study. Sacramento: California Medical Association and California Hospital Association; 1977). A later analysis of the data found that, at most, only 1 in 75 of those injured were compensated (Danzon, Patricia A. Medical Malpractice: Theory, evidence and public policy. Cambridge: Harvard University Press; 1985).

Recent research has confirmed that malpractice is rampant and few medical errors result in legal claims. In 1990, Harvard researchers examined more than 30 000 randomly selected records from New York hospitals. They concluded that 1% of patients were negligently injured, while only 4% of those who were injured, sued (Patients, doctors and lawyers: Medical injury, malpractice litigation, and patient compensation in New York. Cambridge: Harvard University Press; 1990).

The notion that frivolous lawsuits abound is also unsubstantiated. A 2007 study by Public Citizen showed the court system was “on the whole, a rational one that provides money for valid claims and dismisses invalid ones,” (www.citizen.org). Using data from the US government’s National Practitioner Data Bank, the consumer nonprofit group concluded that complaints by “the business and medical lobbies are exaggerated and unsupported by the facts.”

Harvard researchers reached a similar conclusion when they examined files from 1452 malpractice claims (NEJM 2006;354[19]:2024-33). Almost three-quarters had outcomes consistent with their merit. Only 10% of patients received payouts in the absence of error, while 16% received no payout despite the presence of error. “Portraits of a malpractice system that is stricken with frivolous litigation are overblown,” the researchers concluded. The system performs “reasonably well” in dismissing such lawsuits and in compensating the injured.

In addition, there is evidence that jury awards are simply keeping up with the costs of medical care, rather than being out of line. In 2005, Dartmouth College economists studied payments made to patients between 1991 and 2003. Actual payments, not jury awards, grew an average of 4% annually — slowing to 1.6% a year since 2000 — or 52% since 1991, roughly equivalent to increases in health care costs (Health Aff January-June 2005; suppl Web exclusives:W5-240-W5-249). A 2004 RAND study examining 40 years of jury verdicts concluded that average payouts grew by less than real income, with more costly medical care responsible for more than half the growth in jury awards.

In 2007, Americans for Insurance Reform used the insurance industry’s own data to show that higher insurance premiums between 2001 and 2004 were not the result of sudden increases in claims and payouts. Instead, payouts per doctor were stable, or fell, with premium increases unconnected to actual payouts. Malpractice insurers “vastly” and “unnecessarily” increased reserves for future claims, the study found, (www.centerjd.org/air/StableLosses2007.pdf).

Even if caps and other limits on torts are imposed, they do not decrease malpractice premiums, according to the Center for Democracy and Justice. In 2002, it compared malpractice premiums to the amount of state-level tort “reform.” Premiums did not decrease as tort law was restricted. Some states that resisted enacting changes to malpractice lawsuits had low premium increases; some states that made major changes had high increases. “Laws that restrict the rights of injured consumers to go to court do not produce lower insurance costs or rates,” the report concluded. “And insurance companies that claim they do are severely misleading this country’s lawmakers,” (www.centerjd.org/archives/issues-facts/ANGOFFReport.pdf).

Overall, malpractice insurance and claims account for, at most, 2% of US health care spending, according to the US General Accounting Office, the investigative arm of Congress.

Allegations that the threat of lawsuits and high premiums were driving doctors out of business were also unfounded, according to an extensive investigation by the General Accounting Office into anecdotal stories from 5 “crisis” states, so-classified by the American Medical Association. The investigation concluded that access to health care was not widely affected, and that the number of physician departures were sometimes inaccurate.

The problem of volatile premiums won’t be solved without reform of the insurance industry, says Doroshow. In most states, insurance companies can raise rates without government oversight. Requiring companies to justify rate hikes in regulatory hearings could control fluctuations, she says. And forcing malpractice insurance companies to open their books would increase competition in the industry.

The political debate has begun to refocus, a reflection that the real malpractice problem concerns the number of injured patients who don’t receive compensation, says Baker. “The political rhetoric has shifted pretty dramatically in that direction.”

As a senator, US President Barack Obama recognized the fallacy of the tort-reform remedy. In 2005, Obama and then-Senator Hillary Clinton cosponsored legislation aimed at reducing malpractice suits by reducing the number of patients medical malpractice killed or injured. During his campaign, Obama’s health platform called for doctors and hospitals to be required to report preventable errors. He also promised support to providers to create guidelines and technology to prevent future errors.

In the years ahead, as Obama and the Democrats focus on health care reform, US anesthesiologists are likely to serve as the model for patient-safety improvements. Anesthesiologists once sued more than any other speciality and once paid some of the highest malpractice premiums in the country. In the 1980s, the American Society of Anesthesiologists scoured every claim filed against its members to identify unsafe practices and developed new guidelines to reduce errors. The anesthesiologists are now among the safest practitioners, and their insurance rates have fallen. Similarly, some US hospitals have recently examined malpractice claims made against them to find ways to make procedures safer, resulting in fewer lawsuits and lower litigation costs.

Exams of Injured Workers Fuel Mutual Mistrust
By N. R. KLEINFIELD, New York Times
Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker’s back. “Mild spasm bilaterally,” he said softly. He pressed his fingers gingerly against the side of the man’s neck. “The left cervical is tender,” he said, “even to light palpation.”

The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers’ compensation benefits because he no longer felt he could do his job.

Dr. Samuels, an independent medical examiner in the state workers’ compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.

Yet the report Dr. Samuels later submitted to the New York State Workers’ Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Independent medical exams are among the most disputed components of New York’s troubled workers’ compensation system. Under that system, workers with bona fide injuries are entitled to medical care and replacement wages, usually paid for by their employer’s insurer.

The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. As a check on what a worker’s doctor determines, insurers are allowed to order an ostensibly neutral exam by a doctor they select and pay for. They do so regularly, with more than 100,000 exams conducted each year.

But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.

“You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did,” said Dr. Stephen M. Levin, co-director of the occupational and environmental medicine unit at Mount Sinai Medical Center, who has been picked as the interim medical director at the compensation board. “There are some noble things you can do in medicine without treating. This ain’t one of them.”

New York uses independent medical examiners far more extensively than many states do, and critics say the practice adds to the mistrust in the system. The examiners’ opinions can empower an insurer to slash benefits, withhold medical treatment or stall a case. Workers say that psychologically, there is something particularly damaging about being dishonestly evaluated by a medical professional.

“I was in so much pain and felt so hopeless for so long,” said Carol Houlder, a substance abuse counselor who waited a year for surgery on her injured ankle to be approved. “Doctors see you’re in pain and say you’re not. How do they call themselves doctors?”

Many independent examiners are older, semiretired physicians who no longer treat patients, and claimants and lawyers have asserted that the memories and judgments of some of the doctors have at times been impaired by their age and frailties. The examiners do not need special training, only to have a state license and to be authorized in a specialty.

“Basically if you haven’t murdered anyone and you have a medical license, you get certified,” said Dr. Alan Zimmerman, 75, a Queens orthopedic surgeon who does the exams. “It’s clearly a nice way to semiretire.”

Some examiners see dozens of injured workers a day. Often the appointments are booked by brokers who help insurance companies find doctors. Some brokers are not registered with the state, as required, but there has been little enforcement of the rules.

Insurers, examiners and brokers, however, defend the exams as necessary and largely untarnished by bias. Dr. Brian L. Grant, chairman of Medical Consultants Network, a company based in Seattle that arranges independent exams across the country, said, “We never get pressure from an insurer.”

Many workers contest independent medical examiner opinions and often prevail. Judges can, and do, dismiss the exam findings. In fact, some lawyers and judges laugh when certain examiners’ names come up at hearings.

Dr. Kenneth E. Seslowe, an orthopedic surgeon who mainly does independent medical exams, is mocked at hearing offices by attorneys as Dr. Says-No, because they feel he consistently finds no disability. Asked about this, Dr. Seslowe said, “I really don’t have time for this.”

But even when the opinions are discounted, resolution can take months, years, even decades, and many workers, tired of the ordeal of five, six, seven exams, eventually give up.

Some examiners, of course, do furnish honest, well-reasoned opinions. And sorting out the yawning breach between what a worker’s doctors and an independent medical examiner conclude is complicated by the fact that some injuries and their impact on a person’s ability to work — especially soft-tissue injuries like those to the back and neck — are hard to document with indisputable tests.

Zachary S. Weiss, the chairman of the workers’ compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was “off the charts.” But Mr. Weiss, who was appointed in late 2007, said he was unsure what would rectify the problems.

After nearly a dozen years without a medical director, the board has finally filled that job temporarily. It has introduced new, more detailed forms, which many doctors find maddening. It is also working on fresh guidelines that it hopes will better calibrate an injured worker’s care and work limits.

Dr. Robert E. Bonner, the medical director of the Hartford, an insurance company, said it was clear that the landscape had polarized. “Physicians regrettably have moved away from being neutral observers,” he said. “They’ve moved toward one camp or the other.”

Doctor vs. Doctor

When New York companies complain about the high cost of doing business in the state, they often cite fraudulent workers’ compensation claims as a key factor.

Though experts say talk of worker fraud is frequently overstated, it is widely acknowledged that some doctors collaborate with workers or their lawyers to magnify injuries or provide treatment for years without making someone better. Law firms representing workers often have cozy relationships with doctors to whom they refer patients, and vice versa.

A few years ago, Dr. Rafeak Muhammad, a Queens ophthalmologist, was barred from taking workers’ compensation patients after acknowledging that he had treated several long after it was necessary. He declared them unable to work when in fact they could.

David Donaldson, senior vice president at the domestic claims subsidiary of A.I.G., one of the state’s largest workers’ compensation insurers, said, “Our position on I.M.E.’s is we’re looking for someone who is going to give us a coldly objective view of the injury.”

Critics, however, contend that independent medical examiners who reliably dispute workers’ doctors are hired more often by insurers. Some workers cynically refer to them as “insurers’ medical examiners.”

Shu-Ying Xu, 66, a home health aide, said she met with an independent examiner in October 2006 so he could review the back, neck and leg injuries she suffered when she tried to prevent a patient from falling.

She said the exam took two minutes and was so quick that the doctor, Wayne Kerness, an orthopedic surgeon, did not ask her anything.

As a result, she said, when the doctor filed his report he said she spoke English. She does not.

He said she took no medications. She said she took nine.

He said her disability was mild and she could resume work.

She said that she was in debilitating pain and that the Social Security Administration had already concluded that by its standards, she was totally disabled.

“She can’t even hold a gallon of milk,” said Peter Chang, her son. He had come along to the exam to translate. Since no questions were asked, he said he had nothing to do.

After checking his notes, Dr. Kerness said it was an error to have said that Ms. Xu spoke English. Otherwise, he stood by the report. “What can I say?” he said. “People can say whatever they want.”

He added: “I have my share of people I’ve found totally disabled and even recommended treatment that has been overlooked. I think I’m pretty heterogeneous.”

A judge ultimately ruled that Ms. Xu’s benefits should continue.

For decades, independent medical examiners were essentially unregulated. Reports were sometimes altered by brokers and exams often were done at airports, hotels or in the garages of doctors’ homes. In 2000, a doctor examined five patients in a Long Island bar.

In 2001, the state introduced rules. Among them: doctors had to register with the board, work in a medical office and let workers record or videotape their exams. Claimants are permitted to bring along anyone they choose to witness or film the sessions.

While the law has helped, the process remains riddled with flaws. Lawyers and injured workers say many of the examiners still do brief, perfunctory, one-sided exams.

A small study conducted a few years ago at the Central New York Occupational Health Clinical Center in Syracuse found that the clinic’s doctors and independent medical examiners virtually never agreed on whether a worker was disabled. When it can be proven that medical examiners have acted inappropriately, the compensation board revokes their certification — which has happened more often in recent years. But investigations are time consuming and only a dozen or so result in revocations each year.

William Gurin, the board’s fraud inspector general, says his unit’s limited resources are best focused on more fertile areas of fraud, such as employers who underreport their work force to save on insurance premiums.

Similarly, the board struggles to regulate businesses, from storefront exam factories to multistate networks, that help produce independent exams. Decades ago, insurers hired doctors directly. Now the job is increasingly done by third-party brokers called entities.

Entities are paid by insurers — around $500 or $600, say, for an orthopedic exam — and they in turn pay the doctor. Often, doctors submit dictated notes or checklists to clerical staff at the firms, who then draft the reports. Other times the notes go to transcription companies. The people preparing the reports may have no medical training.

Since 2001, the state has required entities to be registered. About 170 have signed up. But a fair amount of independent exam work is performed by companies that have never registered.

It was an unregistered company, Wine Medical Management, that arranged an independent medical exam of Santos Padilla, an injured worker, in 2006. The exam was to be done by Dr. Kerness, but it was canceled, and Mr. Padilla was seen by another doctor.

But somehow the compensation board received a report signed by Dr. Kerness recounting an exam that had never happened.

Dr. Kerness blamed the bogus submission on a clerical error by Wine. He said the company, using a signature stamp, had affixed his name to a report he had not seen.

Wine went out of business last year. A former manager at Wine, Laura Urban, blamed the discrepancy on a transcription company that prepared the reports. Ms. Urban moved to Commander Management, another entity that was doing unregistered work until the board ordered it to cease.

The board is looking into the Padilla episode, and has pledged to crack down on unregistered I.M.E. entities. Only a handful have ever had their certifications revoked, usually not for creating shoddy reports but for failing to pay their doctors.

Robert Grey, a claimant lawyer, said the board should track the opinions of independent medical examiners and compare them to ultimate verdicts, and then exclude doctors who were constantly found not credible.

Currently, the best protection for a worker is to tape an exam. But few do. The board does virtually nothing to promote the practice, and some doctors do not like it. When a woman brought a camera to an appointment upstate, the doctor called the police to toss her out.

Ms. Houlder, 63, who hurt her ankle, videotaped her exam by Dr. M. Pierre Rafiy, a 77-year-old Long Island orthopedic surgeon.

In the videotape, Dr. Rafiy grasps Ms. Houlder’s right ankle and says it is swollen. In the written report, he stated that there was no swelling and no disability and that she could return to work.

When subsequently deposed, he backtracked, saying it had been a secretary’s mistake to say no disability. He did not correct anything else.

Asked about the exam in an interview, Dr. Rafiy said: “I have no way to know if she had real pain. You have to remember, a lot of people don’t want to work. They lie a lot.”

Examiners, or Advocates

Dr. Samuels, 79, with a radiant smile and a burst of snowy hair, stopped doing surgery years ago. Until recently he commonly filled his days performing insurance exams on workers, sometimes as many as 50 in an afternoon, he said in his small office in Borough Park, Brooklyn.

“You obviously can’t spend a lot of time with that volume pushing up your back,” he said. “You have to assume there are going to be errors. Look, there are a lot of holes in this thing.”

At times, evidence shows, Dr. Samuels’s official reports were quite different from what he appeared to find during an exam.

Consider his 2007 examination of Johanne Aumoithe, a pastry chef who said she had hurt her arm and neck. On a videotape that Ms. Aumoithe recorded on her cellphone, Dr. Samuels comments that she had limited range of motion. His written report concluded the opposite.

Asked about the discrepancy in an interview, Dr. Samuels chuckled and said he could not even recall the people he saw yesterday. The way he worked, he said, was to submit a checklist to a Queens company called All Borough Medical, which transformed it into a narrative.

“I never write a sentence,” he said. “It’s really crazy, but that’s how it’s done.”

He often inserted numbers in the checklist — say, a measure of hand strength — after the person left, rather than as he performed the tests.

Was he sure they were correct? “I’m not sure of anything,” he said. “They’re just a guess in the first place.”

The law requires a doctor to attest to the accuracy of a finished report before signing it, but Dr. Samuels said he rarely read them. He doubted he had read the Aumoithe report. “I just sign them,” he said.

If he seldom read them, how did he know they were correct?

“I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”

Dr. Samuels said he generally received about $100 for one of these exams.

The state does not regulate how much a doctor can make for an independent medical exam, though it does limit what a treating physician may charge an injured worker, and generally that is much lower for roughly equivalent work. Some examiners said insurers pay them by the session, say $1,500 to be available from 8 a.m. to 4 p.m. and handle whatever workers are sent to them.

An occupational medicine doctor deposed by Scott Clippinger, a claimant lawyer, said he charged $550 an hour for an independent medical exam. In 2006, Mr. Clippinger complained to the state board that the imbalance in fees “allows the carriers to purchase opinions.” He asked the state why it was not following a clause in state law that says that independent medical exams “shall be paid according to the fee schedule.”

The board’s response was that while the law “does provide that I.M.E. fees shall be paid according to the fee schedule, the fee schedule does not specify a particular fee for an I.M.E.”

Dr. Edward Toriello, a Queens orthopedic surgeon who cares mainly for his own patients, said he is paid nearly twice as much for an independent medical exam than he is for seeing a workers’ compensation patient he treats ($250 versus $140).

Like many who perform the exams, he views the compensation system as bloated with charlatans. Dr. Toriello, who does about 30 such exams a week, estimates that 80 to 85 percent of the time he finds no disability or need for medical treatment in workers whose doctors have found otherwise. He says the disparity is explained by the “comp mentality.”

“I think it’s human nature to help your patient,” he said. “I think a lot of doctors say: ‘I don’t need the aggravation. It doesn’t hurt to keep him out of work.’ ”

Dr. Zimmerman, of Queens, said he believed that 75 percent of people getting workers’ compensation did not deserve it, but also said he was not surprised to hear that insurance lawyers in Queens said his opinions were overwhelmingly disregarded by judges.

“Judges come up with wrong decisions a huge amount of time,” he said. “The lawyers work it so that anyone who scratches their toenail deserves equal treatment as someone who fell out of a 40-story building.”

Sometimes, a review of cases shows, there are stark discrepancies between the testimony independent medical examiners give at trial and their reports.

Twice in 2005, for example, Dr. Francis O’Malley, a Long Island orthopedic surgeon, testified that a disability was more serious than indicated by his reports.

In one case, Dr. O’Malley testified that a man who had hurt his back lifting packages had a “marked” partial disability. The report described the injury as a less severe “moderate” disability.

When confronted with the discrepancy, Dr. O’Malley testified, “I don’t know what’s going on.”

The reports were filed on Dr. O’Malley’s behalf by Hooper Holmes, a national medical services company that operated an I.M.E. entity. The company said that it always submitted exactly what doctors gave it and that it believed Dr. O’Malley, who is 78, was confused. Dr. O’Malley did not return calls for comment.

In the case of William Cassone, the plumbing company driver whose father taped his examination, the exam by Dr. Samuels was arranged by All Borough Medical, an unregistered I.M.E. entity, which got the assignment from another registered entity.

Mr. Cassone had been injured years earlier but was being examined because, as he says on the videotape, he had suffered a second, recent injury.

But Dr. Samuels’s report made no mention of the second injury and deemed Mr. Cassone able to work. When Mr. Cassone got the report, he said, “I was screaming so much I left the house and slept in the car.”

Dr. Samuels later swore in a deposition that the report was accurate. A few weeks later, though, the board received an addendum signed by Dr. Samuels saying he had viewed the videotape and, yes, he had been told of the second injury. Still, he found no evidence of disability.

All Borough declined to comment on the case and its business.

Dr. Samuels said in a recent interview that he had never seen the addendum or the videotape and doubted he had read the original report. He said All Borough must have prepared the addendum without his knowledge.

“This is the first I’ve heard of this,” he said. “Listen, there’s a lot of hanky-panky that goes on.”

Mr. Cassone’s lawyer, Michael Pyrros, told a judge at a hearing that he was concerned there might have been fraud involved in the conduct of Dr. Samuels, the I.M.E. entity and the insurer. When the Cassone case next came before a judge, late last summer, a deal was reached between lawyers to grant Mr. Cassone benefits. Fraud allegations were dropped against the insurer.

Dr. Samuels, who was told to appear at the hearing, did not show up. According to a letter from his lawyer, he was unwell. His behavior was never addressed. Soon after, he retired, his official record unblemished.