Insurance Medical Examiners

Author Subject: Insurance Medical Examiners
Kay Posted At 00:45:48 06/02/2001

Junk Science By IME Doctors

By Dr. Michael Freeman Phd, DC, MPH
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The potential for fraud in healthcare by healthcare providers is readily recognized in all aspects
of society. The high fees charged by doctors for their services regardless of outcome is
frequently the source of humor, derision, and anger. The reason for this potential for fraud is
what is known in the business of healthcare finance as the "agent relationship;" the individual
who profits from the sale of the service is also the arbiter of necessity of the service. The
patient is informed that they need a lumbar fusion, hysterectomy, root canal, or 35 chiropractic
adjustments by the neurosurgeon, gynecologist, endodontist, or chiropractor, respectively. For
this reason, the doctor-patient relationship amounts to a leap of faith on the part of the patient
that they are being sold services that are truly necessary for their condition. This leads to a
fiduciary as well as ethical obligation on the part of the healthcare provider to the patient; the
doctor is obliged to provide services that are appropriate for the patient's condition in both
quality and quantity. This responsibility is enforced by peer review groups and licensing
boards, which curbs potential abuse.

How then, does the independent medical examiner fit into the scheme of appropriate and
necessary healthcare? Their purpose is to review the propriety of a specific treatment for a
particular condition of an individual patient, usually for the third party providing
reimbursement (usually an insurer), who in turn has a fiduciary responsibility to the patient to
pay for treatment that is considered reasonable and necessary. The agent relationship for the
provider of the IME is entirely different than for the healthcare provider. The IME provider has
no ethical or fiduciary responsibility to the patient, and has only to answer to the insurer who
has requested the IME. The reimbursement rate for the IME is usually set in advance, so that
there is no opportunity for the IME provider to enhance recovery from an individual IME.
Future work for the IME provider, however, is more likely if the insurer client is satisfied with
the results of the IME. Satisfaction for the insurer with the results of the IME is more likely if it
is a cost effective alternative to reimbursing for treatment without question. Therefore, there is
a financial incentive for the IME provider to determine that the treatment in question is
unrelated to a condition for which the insurer is responsible. Thus the agent relationship for
the IME provider to the insurer requires a leap of faith on the insurer's part that the report of
the IME is an accurate characterization of the needs of the patient and the propriety of the
treatment. There is no apparent fiduciary or ethical responsibility on the part of the IME
provider to provide an accurate picture of the patient's condition or treatment, other than the
personal ethics of the individual IME provider. There are generally no peer review or licensing
board disciplinary consequences if the IME provider chooses to serve only their own financial
needs in the performance of the IME. Such an arrangement invites abuse.

The IME situation that encourages the greatest amount of abuse is the defense medical
evaluation. The DME occurs in liability litigation where the defending insurer or attorney
representing the insurer is not attempting to determine the necessity of treatment, but rather
sets out to prove that either or both the treatment and condition allegedly related to the
litigation is not the responsibility of the defending insurer. This situation most frequently
arises in motor vehicle crash-related injuries. The DME provider is asked to give the defending
attorney evidence that will help with a legal defense of the allegation that the treatment and
injuries in question are related to the crash in question. There are no consequences for the
DME provider for giving a less than truthful assessment of the situation; one that benefits the
defending insurer and the DME provider. This arrangement not only invites abuse, it
encourages it. It is important to note that not all DME providers abuse their position, however,
it is equally important to note that there is no disincentive for such abuse.

The purpose of this discussion is to present the scientific weaknesses inherent in the
self-serving DME or IME opinion, one that embraces junk science as its core (I define junk
science as the use of scientific terms and formulae applied inappropriately for the express
purpose of lending credence to an opinion that is clearly lacking in validity). The following are
the primary scientific and logical transgressions of such opinions that invalidate them:

The use of risk retrospectively
Example: "Ms. Jones presents with clear evidence of a herniated disc. The risk of such an injury
following the crash in question is minimal, therefore I find it highly unlikely that Ms. Jones
sustained any injury beyond a mild muscle strain in the subject crash." Discussion: Risk is a
statistically-derived tool that is used prospectively to determine to probable proportion of a
population that will experience an outcome. A correct use of risk is as follows: "one out of three
people who sustain a whiplash injury and seek treatment will have some degree of residual
neck pain 33 months post crash." An incorrect use of risk would be "three people sustained a
whiplash injury 33 months prior, therefore at least one but not two of them now have neck

Why is this wrong? Why doesn't 10 coin tosses result in heads every other toss? Because of
the effects of random variation. Since it is unknown how random variation will affect an
individual outcome until after an event, the only valid measure of the outcome is the measure of
the outcome, and not the probability of the outcome. In the case of an injury following a crash,
the measure of the outcome is the evaluation of the injury by a qualified and competent
practitioner. Injury risk is inconsequential, and not to be considered after the fact. The most
absurd, yet appropriate example of this particular type of junk science is to use the statistic that
risk of death in a plane crash in 1 in 1,000,000, and therefore so unlikely that it could not have
occurred in the case in question.

The use of an average as a range
Example: "The average recovery time for whiplash is 8 weeks, therefore the first 8 weeks of Ms.
Jones' treatment was reasonable and necessary, but all subsequent treatment was not."

Discussion: The average of a data set is a measure of the central tendency of that data set. It
does not imply the range of the data set in any way. For example, the statement that the weight
of an average US citizen is 165 lbs. does not rule out a 100, 250, or 800 lb. person. Likewise,
regardless of the average recovery time, it is the range of recovery time that is of importance.
As an average is a measure of the middle of the bell curve, using it as a cutoff point only
correctly defines about half of the population. As discussed above, random variation dictates
that an individual outcome can land anywhere on a distribution curve, from 50th percentile to
99.9th percentile. The actual outcome is determined by real determinants of the patient's
condition, such as history and evaluation. The use of an average obviously implies advanced
scientific knowledge of the epidemiology of the condition, yet invariably, it is fabricated from
the examiner's experience. This is a classic example of junk science.

Misuse and misinterpretation of the biomedical literature
Example: "It is clearly indicated in the literature that chronic pain following whiplash is
non-pathologic, and thus no treatment is indicated for such conditions."

Discussion: The literature is frequently cited as a source of information by which the examiner
can state that the patient in question does not have an injury associated with a particular crash,
however, extrapolating the literature to an individual not specifically described in the literature
is flawed on the same bases stated under #2. Thus, even if the above statement was true (it is
not) it does not rule out that fact that an individual patient can have a pathologic response to a
whiplash injury. The only way to account for random variation is to examine the facts of the
case on their own merits. Additionally, most frequently the DME and IME-cited literature is
selectively read, ignoring the majority of papers that contradict opinions expressed by the
authors of the particular paper. Just as frequently, the papers are mis-read, mis-quoted, or not
read at all, and the opinion is unrelated to paper cited. Another popular ruse is to use the
expression "the literature shows that..." without giving any specific cites, usually because
none exist. Many cites are actually based on abstracts of papers that have not been read in
their entirety.

Setting a standard of care based on an individual opinion
Example: "Such conditions do not typically require care for more than a few weeks"

Discussion: The appropriate duration of type of treatment, regardless of guidelines, is a
case-by-case determination that is made by practitioners on a daily basis. How long a particular
individual will need treatment cannot be determined until the individual has recovered or the
treatment ceases to be effective. Average values are not appropriate in determining the
outcome of a real event, as discussed under #2. Most particularly, the personal opinion of a
reviewing practitioner versus the treating practitioner regarding the quantity or type of
treatment required for a particular condition is an open invitation for abuse of the position by
the reviewer. As there are no ethical constraints preventing the reviewer from disallowing
treatment (it is simply personal clinical opinion), and there are considerable financial incentives
for doing so, I do not believe that this is a workable method for determining the reasonableness
of treatment.

IME and DME examiners should be held to the same ethical standards as practitioners. Peer
review and disciplinary action from examining boards should be available to monitor the
practices of IME/DME providers.

The financial incentive combined with lack of ethical constraints inherent in the IME/DME
system must be recognized and freely discussed by licensing boards and other regulatory

The use of junk science methodology by the IME and DME to deny treatment and
remuneration for injury, particularly given the lack of ethical constraints on such practices,
should be viewed as an act of unprofessional conduct, in precisely the same manner that
overcharging and overtreating a patient would be viewed, since both are financially motivated.

Reasonableness of treatment remains an important problem for all parties. An unbiased, well
trained group of providers who do not provide IME/DME services should be formed by the
regulatory boards to provide treatment review. Their work product should be standardized and
open to statistical review.

Dr. Michael Freeman is a trauma epidemiologist and crash reconstructionist
specializing in whiplash injuries. He is a clinical assistant professor in the Department
of Public Health and Preventive Medicine at Oregon Health Sciences University
School of Medicine, where he conducts research on crash injuries and teaches a
graduate medical course on the epidemiology of trauma. Dr. Freeman holds a PhD in
epidemiology, with his dissertation on chronic spine pain following motor vehicle
crashes. He also holds a MPH in biostatistics. As a crash reconstructionist, Dr.
Freeman serves as a vehicular homicide investigator for state and county police.

Dr. Freeman is originally trained as a chiropractic physician, and is co-medical director
of Willamette Spine Center, a facility in Salem, Oregon combining orthopedic and
neurosurgery, chiropractic, precision spinal injection, physical therapy and
rehabilitation, open MRI, and other services related to diagnosis and treatment of
spinal injury and disease. Dr. Freeman has published and lectured widely on the
subject of crash injury science, and is the co-editor in chief of the Journal of Whiplash
and Related Disorders, published by Haworth Press. He is currently writing a book on
the forensic aspects of low speed crash injuries, which will be available within the next
year. A more complete curriculum vitae can be found at

Michael D Freeman PhD DC MPH
Trauma Epidemiologist/ Crash Reconstructionist
Department of Public Health and Preventive Medicine
Oregon Health Sciences University School of Medicine
Mailing Address: 2480 Liberty Street, N.E., Suite 180, Salem, OR 97303
Office phone: 503 763-3528
Fax: 503 763-3530
Pager: 1-888-501-7328
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