Supreme Court, Queens County
Reporting by Samson Freundlich and Eric Turkewitz
Last week a state trial judge unsealed a record showing falsified testimony by a New York orthopedist who conducts up to 1,000 medical-legal exams each year. ?Queens Supreme Court Justice Duane Hart unsealed the April 12, 2013 testimony of Dr. Michael J. Katz as he pondered a referral to the District Attorney for perjury over ?a huge lie? concerning so-called ?Independent Medical Exams.?
Dr. Katz, an orthopedist frequently hired by insurance companies to defend personal injury cases ? who has testified that he may make over a million dollars a year just from his medical-legal practice ? had testified in the recent case that he likely spent 10-20 minutes on his examination of the plaintiff. A surreptitiously made video, however, revealed that he spent a mere one minute and 56 seconds on the exam and could not have made all the findings he testified about within that short time.
The underlying labor law case concerns a severe ankle fracture that resulted in a fusion of the joint as well as a shoulder injury that required surgery, suffered when?Manuel Bermejo?fell from a Bakers Scaffold. The court indicated that there was potential for a verdict of ?several million dollars? based on the injuries.
The transcripts in Bermejo v Amsterdam that we obtained over the July 4th break detail Justice Hart?s concerns not merely with the fact that Dr. Katz was dishonest regarding the estimated length of the actual exam, but that the substance of what he testified to could not be true. Justice Hart said, ?He testified as to findings that he obviously could not have had in a minute and 56 seconds.?
These medical exams are often critical to the defense of ?personal injury cases, and are also used by insurance companies to ?evaluate? whether they should continue to pay No-Fault or Workers Compensation benefits. The reason the exams are often problematic is that the insurance carriers have a vested interest in limiting payments and only retaining doctors that give them favorable reports, and there is no stenographer to record what transpires. Quickie exams that serve only to deny benefits to the injured are a constant problem.
But this case had actual evidence in the form of a secretly made video recording. It shows Dr. Katz examining Mr. Bermejo as plaintiff?s trial counsel, who recorded it, ?and a paralegal-translator looked on. This was the second exam that Dr. Katz had done of Mr. Bermjo, as he had undergone shoulder surgery after the first examination.
Plaintiff?s counsel was moved to record this second exam, according to court transcripts, because he believed that Dr. Katz had been dishonest in his report of what transpired at the first one. The initial exam, Dr. Katz claimed, lated 45 minutes and he also claimed that plaintiff?s counsel impeded it. (The paralegal that was present took the stand and sharply disputed both points.) When the time came for the second exam, plaintiff?s counsel secretly recorded it to protect himself from any possible complaints or accusations from the doctor.
This secret recording was not exchanged during the litigation, as plaintiff?s counsel said there was no requirement to do so since Dr. Katz was a non-party, and the only potential use of the video was if Dr. Katz perjured himself. When Dr. Katz offered testimony at trial that was completely inconsistent with the actual events, the evidence was submitted to the court. As a result of this video substantively contradicting the trial testimony, and concerned about a breach of the discovery rules and orders by the failure to disclose, Justice Hart declared a mistrial after 2-3 weeks of trial.
In a remarkable hearing before Justice Hart after the false testimony had been given, Dr. Katz?s criminal defense attorney stated that the perjury was the fault of the court because the court had demanded the doctor tell the truth in answering the question about how long such exams usually take. Justice Hart characterized this as ?the dumbest thing I ever heard? either inside the courtroom or out.
At a hearing July 1st to apportion responsibility for the cause of the mistrial, Justice Hart initially sanctioned the defense firms $10,000.00 each, noting that ?It is?the carriers and Dr. Katz that I would love to sanction, but I can?t do that? as sanctions are restricted by the court rules to parties and their attorneys. Unhappy with that restriction, Justice Hart said, ?You can probably hear my teeth grinding.?
The court had also initially sanctioned plaintiff?s trial counsel $250 for not exchanging the video, which sanction was also withdrawn and plaintiff?s counsel absolved of fault for causing the mistrial. The judge derided Dr. Katz on his assertion that his first exam lasted 45 minutes, and said ?it would have been reasonable? to want such a recording. Justice Hart, who has served ?since 1981 as attorney, law secretary or judge, said regarding the alleged 45-minute claim by Dr. Katz, ?What universe does he live in? If I ever see a doctor do a 45-minute IME it will be the first time.?
All the attorney sanctions were vacated later in the hearing.
Justice Hart, in finding that it was the doctor?s false testimony that caused the mistrial, stated that while he had seen abuse of the system before, ?This is clearly the most blatant example of a doctor getting up there and just not telling the truth.? He also suggested that plaintiff?s counsel who had spent $40,000 on trying the case so far, should sue Dr. Katz for the expenses and legal fees caused by the mistrial.
Feeling handcuffed by the relatively few options available to him for a non-party witness that lies and causes a mistrial, and recognizing that there are others doing the same, Justice Hart asked the attorneys:
How do I stop carriers from putting people ?like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand? How do people like me, people in this building, people that wear black robes send a message to them that they cannot condone perjury?
Despite all the admonitions thus far from Justice Hart the matter remains open as Dr. Michael Katz is still conducting medical-legal examinations and has refused to retire from these activities.? Justice Hart had offered him the option of bowing out of the business and he declined. Thereafter the court ordered a full transcript, intending to send the matter to the Administrative Judge for a civil contempt hearing and send the matter to the District Attorney with a recommendation that they explore a perjury prosecution.
Regarding the fact that Dr. Katz was still doing these medical-legal exams on July 1st when this hearing took place, and recognizing that he had been caught lying back on April 12th, Justice Hart said:
It is like a wound that is festering. Every time he does another IME. When is it going to stop? He is making 7 figures a year doing IME?s. Then he comes to my part and lies.
Judge Hart did not mince words when he said that, aside from the effect of any potential criminal issues, that Dr. Katz?s career was essentially finished when it comes to his substantial medical-legal practice: ?Dr. Katz? future doing IME?s because he lied in this one will probably be finished.?
?It is that the tape shows that he didn?t do the tests that he spent a considerable period of time talking about that he did. That is the perjury. Yes, didn?t do the tests. It is not just me saying it. It is not just the plaintiff saying it. The defendants are saying it too. Does your client really think if the insurance industry or some of the insurance companies that hired him before when they find out that he lied, do you really think they are going near him??
The impending denouement of Dr. Michael Katz is all the more stunning since it comes fresh on the heels of his fellow New York orthopedist?Dr. Robert Israel being sanctioned?for his conduct in medical-legal exams. Dr. Israel had been doing up to 1,500 per year, but has now been barred from doing them for three years.
Together, Drs. Katz and Israel have no doubt sent New York?s insurance carriers frantically scrambling, as the two of them were responsible for thousands of insurance exams each year, the results of which are now all thrown into question. The scope and scale of insurance fraud being perpetrated ? by the insurance companies themselves ? could have resulted in hundreds of millions of dollars in payments being withheld. It remains unclear just how many New Yorkers have been fraudulently denied benefits based on quickie exams that were set up to deny benefits and minimize jury verdicts.
The scope of such an investigation of the insurance industry, it seems, could only be done by Attorney General Eric Schneiderman.
Last week?s hearing regarding Dr. Katz was adjourned until this afternoon (July 8th) at ?2:00 pm. It is unclear whether Dr. Katz will voluntarily agree to halt his lucrative medical-examination business ? though this now seems like a moot point now since the record regarding his false testimony has now been unsealed.
It?s worth adding that this is not the first time Dr. Katz was caught by a court with less than candid conduct that caused a mistrial. A year earlier while testifying in Brooklyn, Dr. Katz went outside the confines of his report to suddenly testify about a relationship between tinnitus and aspirin. Justice Francois Rivera, after making an inquiry, said that he was ?satisfied that this witness is less than forthcoming? about his decision to suddenly stray from his report to a new subject, and was concerned with Dr. Katz ?materially misleading the court.?
The legal fallout may result in any or all of the following:
- Civil contempt of court;
- Criminal perjury prosecution by the District Attorney;
- Civil suits for causing this mistrial by any/all of the attorneys involved;
- Civil suits based on fraud by past litigants saying they were also victimized by Dr. Katz;
- Action against his license from the Department of Health-Bureau of Professional Medical Conduct;
- Racketeering suits for conspiring with insurance companies to commit insurance fraud; and
- Investigation by the Attorney General into the issue of insurance fraud perpetuated by the insurance industry.
These predictions regarding a wide-ranging insurance fraud scandal are backed up by Justice Hart, who repeatedly referenced the insurance carriers as being part of the problem:
I can blame the attorneys and the carrier who hired?him to do an IME on this case because they should have known what this guy was doing. They should have known. And again the?man is making literally millions of dollars doing IME?s. Now, he gets caught lying. There is no other way to put it. He lied. There is no other way to make it nice. He said the IME took between 10 to 20 minutes. It took a minute and 56 seconds.
The transcript of the proceedings is here:?July 1 Transcript
From what we?re watching unfold, this may be the tip of the iceberg. ?Stay tuned?
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