IME held libel for "substandard" care in evaluation ($1 million federal judgment)

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Posted by S and G (e-mailed in to IWA) on May 09, 1999 at 14:38:18:

The Daily Advertiser (a newspaper in Lafayette, LA)
DATE: Monday, May 3, 1999
PAGE: A1 - lead story

HEADLINE: Opelousas man wins oilfield case: Area Doctor breaks conspiracy of silence

"Gerry Quirk hopes a $1 million federal judgment he won recently will send a message to area physicians who perform "substandard" independent medical examinations.

"I hope it brings them back to their oath," Quirk said. "I hope it helps remind them of why they became help people not just make money."

Quirk's experience in August 1994 with DR. J. FRAZER GAAR, an Opelousas orthopedic surgeon acting as an IME, or independent medical examiner, for Quirk's insurance company, led both parties to federal
court in late April.

When a week-long trial ended, a six person federal jury found that GAAR provided "substandard" care in his total evaluation of Quirk, also of Opelousas. The jury awarded Quirk, his wife, Rose and their three sons, now ages 17, 12, 11, more than $1 million dollars
in damages.

Quirk's attorney, Joseph Joy III, and other Lafayette attorneys said the outcome of the civil case will change the way certain independent medical examiners operate.

"Doctors are going to be a lot more careful when they read MRI or CAT scans," said Joy. "When the radiologist says something is wrong, they'll be more inclined to send out for a second opinion. They'll
spend more time with the person."

"They're going to be a whole lot more careful to be reasonable and logical in their decisions because if they're not, they can be sued, agreed Lafayette attorney Glenn Armentor, who followed the Quirk case.
"This is going to be a good thing in the end for the patient."

"Not all of them, but certain groups of these doctors have gone to untold ends to give a satisfactory answer to the person paying them. This case is going to open IMEs' eyes and make them realize, I do have a responsibility to this person. If I find something wrong that merits further tests, I need further tests, or if I don't know, I need to say I don't know,' as opposed to dishing out an opinion. It's a substantial decision."

Quirk had spent 13 years working as a pipe fitter on off-shore oil rigs. On June 5, 1993, he injured his back on a job. Quirk's treating physician, Dr. Stuart Phillips of New Orleans, recommended surgery for a herniated disc. But the insurance company that
provided employers' liability coverage for the company Quirk worked for refused to authorize the surgery. The company wanted Quirk to be seen by an IME.

The first IME, Dr. Clifton Shepherd of Lafayette, said he was not opposed to the surgery, but would not personally perform the operation at that time, court documents showed. Because of the conflicting medical opinions, Gray Insurance Co. sent Quirk to GAAR
in August 1994, for a second IME exam.

GAAR reported to the insurance company that Quirk;s scans were "within normal limits" for a man his age, that he didn't need back surgery and could return to work. The insurance company used Gaar's report to deny treating physician Phillips' request for surgery. And Quirk's worker's compensation benefits were terminated.

By December 1995, Quirk was still in pain and having other medical problems related to the back injury. Phillips declared a medical emergency and performed the surgery. Quirk was let with PERMANENT
injuries, Joy said that make him unemployable. Joy argued at trial that the delay in Quirk's surgery worsened his condition.

The jury assessed 100% of the fault to AGAR (MIE), finding that he provided "substandard care in his total evaluation" of Quirk and that his conduct was "a cause of injury" to Quirk. This is a tremendous
change of precedent from the past," attorney Armentor said.

He said that doctors who have done IMEs in the past have been "insulated" from liability because, as an IME and not a treating physician, they are essentially rendering a second opinion. But the jury's decision was based on an instruction by presiding U.S. District Judge Richard Haik, that a physician-patient relationship existed between Quirk and Gaar in the IME setting"

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