By Burton E. Falk
In the workers’ comp world, applicants and defense attorneys try to reject med-legal reports and disqualify the medical evaluators, including QMEs and AMEs when they don’t like a doctor’s opinion. There are techniques to avoid disqualification that will help preserve your reputation and ensure that you get paid for your med-legal reports.
In a recent case we litigated at the WCAB, an applicant’s attorney tried to use LC § 4628 – also known as the “anti-ghostwriting” statute – to disqualify a QME and request a replacement panel.
The QME’s supposed “sin” was that he had casually spoken to another doctor in a different specialty to confirm the QME’s decision to use a particular diagnostic test and methodology for a patient with a certain condition. This conversation – commonly called a “curbside consultation” – was brief and completely anonymous, with no mention of the injured worker’s name.
The QME later testified in his deposition that “we doctors” typically use a particular diagnostic methodology and that he had spoken with another doctor about the diagnostic methodology. In response, the applicant’s counsel filed a petition to disqualify the QME pursuant to § 4628, which requires that only the physician preparing and signing the med-legal report can: (1) take a complete history, (2) review and summarize prior medical records, and (3) compose and draft the conclusions of the report.
Even though there was no evidence whatsoever that anyone other than the QME himself reviewed the applicant’s medical records or participated in composing the medical report, the applicant’s counsel nevertheless argued that the QME should be disqualified for collaborating with a ghostwriter.
Fortunately, the WCAB judge after reviewing the briefing by counsel for the applicant, the insurer and the QME (represented by RPNA ), rejected the petition to disqualify and noted that:It is customary in many professional circles that collaboration between colleagues is thought of as a method to understand, learn, and enhance ones views in relation to the fundamentals of their profession. . . . Applicant offered no evidence that he was evaluated by another doctor, nor that his records were presented to another physician for review. According to [the QME’s] representation, he only sought insight on general methods and/or conditions to assist him in making his determination.
The judge found no indication that the contents of the QME’s reports were less reliable or that the integrity of the medical legal process was compromised. As a result, the QME did not breach Labor Code § 4628, his reporting as PQME remained valid, and a replacement panel did not issue.
Nevertheless, physicians who render med-legal reports in the w/c arena should be mindful of this “anti-ghostwriting” disqualification tactic when giving deposition testimony. Make it abundantly clear that your brief conversations with other doctors are solely to help you understand, learn, and enhance your views in relation to the fundamentals of your profession. Keep your “curbside consultations” hypothetical and anonymous by not mentioning the injured worker’s name.
If you have any questions, please don’t hesitate to contact us: Burton E. Falk (bef@rpnalaw.com) or Nicholas Roxborough (npr@rpnalaw.com). We may also be reached at 818-992-9999. We would be happy to discuss your situation and provide you with the guidance you need to ensure solid deposition testimony and secure reports.
