SHM BLOG

Here is a link to a New York Times article that provides confirmation that MRIs are overused and not clinically important unless correlated with symptoms.

Click here to view article

SHM would like to congratulate Matthew Scarborough on his recent trial victory in Polk County, FL. Faced with clear liability, horrific property damage photos of the Plaintiff's automobile and 180,000 in outstanding medical bills, the jury returned a verdict of $24,000.00. The Plaintiffs rejected proposals for settlement totaling $135,000 (the remaining policy limits of the insurance policy). Motions for attorneys fees and costs against both Plaintiffs are pending.

Page 16 of the August 17, 2011 edition of the Tampa Bay Times (TBT) has some persuading statistics and commentary about the issued of staged car accidents throughout Florida. It is certainly worth a read.

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The Second District Court of Appeal held in USAA Casualty Insurance Company v. Callery, 36 Fla. Law Weekly D1230a (Fla.2nd DCA June 10, 2011) that a trial court’s order limiting the production of the last 20 compulsory examination reports of an IME doctor with the patient-identifying information redacted was error. The trial court’s order directed that only the physician’s conclusion/impressions, signature, the date of the report, and the name and address of the receiving attorney were to be be provided. Mr. Callery hoped to impeach the IME physician by showing that his reports routinely and uniformly supported insurers. The Second DCA refused the trial court’s order on the grounds that section 456.057 (7) (a) Florida Statutes prevents a health care practitioner from discussing a patient’s medical records without the patient’s written authorization. According to the Second DCA, the trial court did not provide “alternative means to protect other patients’ privacy rights when a party has made a showing that the court cannot comply with the statute under circumstances that justify disobeying the statute.”

Our firm has a pending petition to the Second DCA where the trial court ruled that an IME physician had been evasive in his deposition testimony regarding his opinions in prior compulsory medical examinations for insurers. In the case which our firm is defending, the trial court ordered that the IME physician was to bring with him to a second deposition his past compulsory medical examination reports for the past 3 years, and that he could be deposed as to the date of each exam, the charge for each exam, who hired him, what his opinions were of the existence of permanent injuries, and what his opinions were of the need for future medical care.

As in Callery, the trial court’s order did not require the permission of the persons whom were examined in order to disclose their medical conditions. Unlike Callery, the court in our case did not order the production of the records themselves –only that the IME physician bring the reports with him in order to answer questions concerning the injuries and his opinions of their permanency and need for future medical care. We believe that the Second DCA is currently debating the issue of how far a trial judge can go in allowing an injured party to question an IME doctor regarding his opinions, especially of permanency and the needs for future medical care, without notice to the other claimants in those cases, in order to prove that the IME physician retained by an insurer routinely writes compulsory medical examination reports that are favorable to insurers. This type of discovery is not unique, but there appears to be a growing and coordinated effort by plaintiffs’ counsel to compile a bank of information on IME physicians. The challenge for the defense is to answer charges of bias and prejudice in what may amount to a “trial within a trial” to show that IME physicians review medical histories, the facts of the accident and the injuries of each person for the basic proposition that not all medical conditions, histories and injuries are the same for every person. Otherwise, a jury is left with the false impression that all compulsory medical examinations are manipulated by doctors for insurance companies.

You will have our analysis of the Second DCA’s opinion, which we believe may lay down a “black letter” rule to be applied by all Florida courts and its implications, as soon as the court reaches a decision on our petition which we filed in November 2010.

The Tampa police busted these clinics for staging accidents in Hillsborough County:

Doctor Florida Rehabilitation located on 2123 W. Dr. MLK;
Injury Health Care Therapy located on 5537 Sheldon Road;
Recovery Rehabilitation Services located on 7025 W. Hillsborough Ave.; and
Healing Touch located on 6821 W. Hillsborough Ave.

We will continue to keep you posted on these developments.

Click here for more information: http://www2.tbo.com/news/news/2011/may/13/MENEWSO3-staged-crash-crackdown-ar-207043/

Insurance Adjusters Beware—Read the Subpoena Duces Tecum
In Cartaya vs. Sanchez-Arias, the Hillsborough County Court entered sanctions against the defending insurance company after the insurance company failed to schedule a hearing on its Motion for Protective Order to be heard prior to the deposition of the company’s adjuster.  The Court also sanctioned the insurance company because the adjuster appeared at the deposition without his claim file or claim notes, which the Plaintiff requested in its subpoena duces tecum.  Based on this ruling, defending insurers should read subpoena duces tecums carefully, and prepare and set for hearing before their depositions any Motions for Protective.

Questionable Clinics That Should Be On Your Radar
As many adjusters adjusting claims in Florida know, there is certainly no shortage of clinics that will say anything to support a claimant and/or plaintiff’s claim—that is, diagnose and “allegedly” treat non-existent injuries, and even commit fraud by generating false medical records.  Insurance companies have also routinely observed these clinics get away with this sometimes illegal activity with little or no interference from law enforcement.

Despite the fact the State rarely enforces its laws against insurance fraud as much as those in the insurance industry would like, many of these clinics perform another criminal act that exposes their fraudulent nature—drug dealing.

For approximately the last two years Hillsborough law enforcement has been working vigorously to shut down these so-called “pill mills,” which are clinics who supply prescription pain medications to addicts.  The clinics in Hillsborough County the authorities have already closed include Superior Injury Center of Tampa, Habana Spine and Medical Center, and 1^st Medical Group.

Based on this information, this firm recommends adjusters revisit their Hillsborough County claims in order to determine if any of the claimants treated for their injuries at any of these clinics.  If so, then the adjuster will have additional ammunition for the defense of the claim.

SHM Wins Another Motion to Dismiss for Fraud Upon the Court
When a defendant moves to dismiss a lawsuit because the plaintiff has committed a fraud upon the court, the defendant is basically asking the judge to sit in the shoes of the jury in order to pass judgment on the plaintiff’s credibility.  Since such a motion contradicts the long line of jurisprudence in which our legal system delegates the judging of a plaintiff’s credibility to the trier of fact (who in most circumstances is a jury), most judges are reluctant to grant such motions.

Despite the obstacles standing in the way of obtaining an Order dismissing a case for fraud upon the court, Scarborough Hull & Miller has been extremely successful in obtaining such Orders.  In fact, in April of 2011, Kevin M. Davis of Scarborough Hull & Miller not only obtained a dismissal based on the plaintiff’s fraud, but even an Order permitting the firm’s client to pursue fees and costs against the plaintiff pursuant to Section 57.105, Florida Statutes.

In the Hillsborough County case of Burns vs. Mitchell, the Plaintiff alleged to have suffered a knee injury after being stuck by a taxicab driven by the Defendant.  Vigorous investigation, however, uncovered two witnesses, who attested under oath the Plaintiff struck himself in the knee with a crowbar in order to “invent” a claim against the Defendant.

The Defendant then sought dismissal for fraud and for sanctions upon learning this material.  The Plaintiff’s attorney subsequently withdrew—leaving the Plaintiff unrepresented for the hearing.  Since the Plaintiff neither filed any response, nor appeared for the hearing, the Pinellas County Court dismissed the action for fraud, and issued an order entitling the Defendant to fees and costs.