Weiss Zarett Brofman | Sonnenklar & Levy, P.C. | Attorneys At Law

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Gotcha! When Malpractice Plaintiffs Fake or Exaggerate Injuries

On Behalf of | Jul 1, 2011 | Healthcare Law

A video presented at a malpractice trial showed a pitiful 56-year-old man grimacing in pain, hobbling on crutches, unable to even brush his teeth without his wife’s assistance. His sex life was over. His disabilities were caused by a botched back operation, he testified.

The defendant neurosurgeon and his insurer were convinced the man was lying. But how to prove it? Investigators with video cameras staked out his house for 3 days, but the man stayed inside. The investigators were about to quit the surveillance when the man finally emerged, jauntily carrying a hydraulic jack and cinder blocks to prop up his car. He then changed the shock absorbers and performed other tasks with the dexterity of a pit crew at the Indianapolis 500.

The surgeon’s attorney presented the video to a judge who promptly dismissed the malpractice case. Prosecutors then charged the man with perjury. He was convicted and sentenced to 30 days in jail.

In malpractice cases, it’s almost expected that plaintiffs will “gild the lily” by exaggerating their disabilities. However, even the most egregious examples of fraud generally go unpunished — unlike the case mentioned.

In many cases, searching through public records and databases can turn up phony claims without the expense and uncertainty of video surveillance. A check of motor vehicle records showed that one plaintiff had several speeding tickets issued 90 miles from the home he claimed he couldn’t leave because of his “injury.”

When his employment records were subpoenaed, it turned out he worked as a long-haul trucker, shifting gears in an 18-wheeler all the while claiming that his left leg was immobile as a result of a physician’s negligence. In a case that involved a claim for loss of consortium, a check of divorce records found that the couple had broken up several years earlier but supplied false information about their marital status to boost the value of the lawsuit.

Finding the Fakes

How can doctors and their attorneys confirm suspicions that a plaintiff is faking? “The first tip often comes from the doctor who says the patient is acting or moving in ways that are inconsistent with the allegations,” says James Lewis Griffith Sr., an attorney in Philadelphia who represents both patients and physicians. “A careful reading of the medical record can lead you to investigate further. At depositions, you develop a sixth sense about whether someone is telling the truth, often when they act too smart for their own good. Outright fraud may occur in 1% of cases and it’s difficult to prove. But exaggeration is pretty common.”

“We look for red flags, especially if the claimed injury doesn’t follow the typical pattern,” says Peter Leone, New Jersey program director for Academic Insurance in New York, which insures almost 3000 physicians. “Whenever the plaintiff says there’s something he can’t ever do again, especially if he’s a young man, that’s suspicious and we dig deeper.”

How Insurers Hunt for Information

Once a lawsuit is filed, liability carriers check an industry database of all insurance claims to learn about the plaintiff’s car accidents, workers’ compensation cases, and other claims. That can turn up previous injuries and treatments that some plaintiffs may conceal, says Thomas Connolly, director of the special investigations unit of Princeton Insurance Company

Is the plaintiff who he or she claims to be? A records search can reveal significant discrepancies. Dennis L. DeMey, a former police officer and president of Adam Safeguard in Toms River, New Jersey, came up with a “Forensic Abstract” program to screen malpractice complaints. It verifies vital statistics including phone numbers, Social Security information, driving records, liens and judgments, workers’ compensation claims, and criminal backg