MALPRACTICE FAKERY

How high-tech private eyes catch malingering plaintiffs

Cyber-sleuthing is the newest way to expose phony claims.

By Mark Crane
Senior Editor

Is that malpractice plaintiff truly bedridden because of medical negligence, or is he just hoping to shake down the doctor and his insurer for a quick settlement? Princeton Insurance in New Jersey is using new high-tech information-gathering methods to expose frivolous and exaggerated lawsuits.

By searching through public records and databases, the insurer follows a paper trail that surprisingly often leads to proof of fraud. The company claims that its investigative techniques are more effective in exposing phony claims than video surveillance, even when a video clearly shows a litigant performing activities he swore he couldn't. So, the company says, a good investigator with computer savvy gets better results than the gumshoe hiding behind a bush with a camcorder. Bill Gates trumps Sam Spade.

Consider these examples from Princeton's case files:

• A routine check to verify a plaintiff's Social Security number ultimately turned up several interesting facts. The woman had a second, fake Social Security number, along with a false name. She also had a string of lawsuits pending against other health care providers, something she'd denied in legal papers. Her lawsuit against one, an orthopedist, could have resulted in a multimillion-dollar verdict. The paper trail led computer sleuths from one revelation to another. This plaintiff, who'd claimed to be bedridden because of her physician's negligence, held a job as a bartender at a bowling alley. She was a money-league bowler, and her trophies, engraved in the name of her false identity, were prominently displayed at the alley. This plaintiff had already fooled other expert reviewers and had been receiving disability payments for years.

• A check of motor vehicle records showed that another claimant had received several speeding tickets. No big deal, except that the tickets were issued 90 miles from the home he claimed he couldn't leave because of his "injury." Following that trail, investigators subpoenaed employment records. The man who swore he could no longer work because of medical negligence had a job as a long-haul trucker and was able to shift gears in an 18-wheeler with ease, although his lawsuit against the doctor charged that his left leg was immobile.

• Loss-of-consortium claims are standard in many malpractice suits. In one case, investigators dug until they found that the husband was using one address while his wife's main residence appeared to be in another state. Divorce records were searched in both states. The couple had broken up several years earlier, but supplied false information about their marital status to boost the value of the lawsuit.

All the cases were either dropped or settled for nominal amounts. Based on those and other experiences, Princeton Insurance formalized its program of verifying information supplied by plaintiffs when they file lawsuits. The Forensic Abstract program, as it's called, is the brainchild of Dennis L. DeMey, a former police officer and president of the claims examination firm Adam Safeguard in Toms River, NJ. Princeton now uses the program to screen every professional liability claim it receives. Other insurers have similar programs, though not necessarily as extensive as Princeton's.

The program verifies vital statistics, including telephone numbers, Social Security information, driving records, liens and judgments, workers' compensation claims, and criminal background. It also discloses injuries, accidents, medical treatments, lawsuits, suspicious claims activity, and other circumstances that could mean the difference between winning and losing a lawsuit.

"Many claims seem legitimate on the surface," says DeMey. "But if you look closer, you may find a detail that exonerates the physician defendant, or at least mitigates the effect of the doctor's actions. It's also beneficial when our scrutiny confirms that the claimant is telling the truth, that his injuries and disabilities are real. That allows the insurer to settle cases sooner and at less ultimate cost."

The program has more than paid for itself many times over, says Peter Leone, Princeton's vice president for claims. "We've saved millions of dollars by identifying fraudulent claims," he says. "Unfortunately, there are professional litigants adept at hiding their identities and job and health histories. We've found claimants who, even though they swore they'd never been injured before the alleged negligence, had been treated for existing conditions for years, but under different identities.

"Often, the injury may be legitimate and the physician may have been negligent, but the claimed disability is grossly exaggerated. Doctors who are victims of questionable lawsuits feel frustrated, helpless, and angered by false allegations. Our program helps shift the balance of power back to the defendant, to protect his reputation."

After DeMey studied thousands of Princeton's claims over several years, the insurer had proof of what it had often suspected: A lot of plaintiffs are liars. "We've found something amiss in about 20 percent of the claims we've looked at," he says. His statistics show that 9 percent of claimants supplied Social Security numbers that were never issued by the government or were otherwise fraudulent. Some 28 percent of claimants had motor vehicle accidents they'd failed to disclose when questioned, 26 percent had additional addresses, 23 percent had used an additional name, and 6 percent had more than one Social Security number.

"Some of this isn't fraud," says DeMey. "Lots of married women use their original names for professional reasons, but their married names in other circumstances. Some people prefer to be called by their middle names rather than their first name, and may be listed that way in various records. But an inconsistency tells us to keep asking questions. When we search court records for a married name and come up empty, we've often found a gold mine of information under the original name."

Fraud apparently crosses all socioeconomic lines. "Anyone is capable of exaggerating a claim when money is involved," says Leone. "White-collar plaintiffs are just as likely to gild the lily as low-income claimants." DeMey agrees: "It's a mistake to assume that someone with a solid middle-class background and a prominent position can't possibly be lying. That's why we check out everyone."

A paper trail yields more than a video camera

Surveillance videos aren't nearly as effective in exposing a fraudulent claim as many think, says DeMey. "Surveillance is extremely expensive and time-consuming. You have to hire teams of investigators to sit outside the subject's house and wait for him to emerge, and then do the things he claims he can't do. That can take a long time.

"Video surveillance is difficult these days," he adds. "Neighbors are suspicious of a van sitting on a street for several hours and will call the police or confront the driver and ask him what he's doing, blowing the investigators' cover."

Even when a video clearly shows the subject performing physical activity he swore he couldn't, juries aren't always impressed. "Jurors can become inflamed by what they perceive as Big Brother tactics of investigators following someone around," says DeMey. "There's a visceral reaction among many people against this kind of snooping."

Peter Leone agrees. "There are still times when we use video surveillance, but it can backfire. Juries often see it as a breach of privacy and put themselves in the position of the subject. If a jury likes the plaintiff, they'll disregard what they see on the tape. They rationalize by saying, 'Well, maybe he's just having a good day.' We've lost several cases even though the tape clearly proved the claimant was engaged in fraud."

Documentation can accomplish more. "We didn't need videotape to win a case against a plaintiff who claimed he could no longer work or drive a car," says DeMey. "This guy came into court in a wheelchair and presented himself as a very sympathetic victim. We showed the jury poster-size blowups of his speeding tickets, his workers' comp records, his employment applications, and office records of the chiropractor who'd been treating his bad back for years before the alleged medical malpractice. You could actually hear jurors gasp when it dawned on them what a liar this plaintiff was. The document search was much more powerful than video surveillance."

How the investigators track down cheaters

The Forensic Abstract program consists of a series of database, databank, and on-site searches to verify and locate information on a subject. Investigators attempt to verify the subject's identity, residence, prior accidents or injuries that might affect the case, past and present lawsuits that might also involve previous injuries and treatments, bankruptcy filings, marital status, criminal records, and employment.

"If someone is suing one of our doctors, we have the right to verify anything the claimant says in his complaint," says DeMey. "If we find the plaintiff is lying about one thing that may seem unimportant, it raises a red flag. Why did he lie? What else might he be lying about? One little inconsistency can lead us to the next fact, which may be crucial to the defense."

The first stage of the investigation is to verify basic information about the plaintiff's identity. If warranted, the next step might involve document retrieval for court records, bankruptcy filings, and motor vehicle and criminal records. If that turns up something suspicious, the defense attorney may be asked to subpoena records, such as the plaintiff's employment applications and treatments by other health care providers. "Many court records are now available electronically," says DeMey. "When they aren't, we employ runners and agents to do searches in person at the county courthouse."

Plaintiffs often must answer a series of questions during interrogatories and depositions before the malpractice case proceeds to trial. Princeton Insurance works with its defense attorneys to phrase the questions in ways that are specific enough to lock the plaintiff into his story and eliminate any wiggle room. "We can't complain about fraud if a plaintiff doesn't volunteer information because we didn't ask the question properly," DeMey says. "A poorly worded question gives a dishonest person a loophole."

A demand as seemingly innocuous as "state your name" can have wide ramifications. "I have a friend everyone knows as Dave Smith," says DeMey. "That's a nickname for David. But even my friend didn't know that David wasn't his real first name until he applied for a driver's license when he was 17. The Department of Motor Vehicles has a rule that your name must appear as it does on your birth certificate. His name is George David Smith. Why was he called Dave? His father's name was George, and the family didn't want the confusion of father and son having the same name, didn't like the use of Junior, and didn't want them to be called Big George and Little George. So they used his middle name.

"As a result, my friend Dave's Social Security card and firearms identification card list him as George David. His driver's license, real estate mortgage, and some credit cards list him as George D. His pension checks and IRA accounts name him as G. David. His health insurance card shows him as G., and the name on his prescription card is George," says DeMey. "An investigator needs to know all of that to do a complete records search."

The plaintiff may claim that he's never previously been treated for an injury he says was caused by medical negligence. But health insurance records could show otherwise, if you have the right name to check.

Therefore, asking a plaintiff for his name is a four-part question to cover all the bases: "State your full name exactly, including middle initial and any variations you have utilized (first initial, middle name, dropped first name utilizing middle name), and that of your spouse or guardian. State whether you have ever been known by, employed under, or utilized for any reason any other name; and, if so, please state each other name, including middle initial, which you have ever been known by, employed under, or utilized for any reason. State your maiden name, if applicable, and the date when you ceased using the same. State any previous married names, if applicable, and the inclusive dates thereof."

"Once we get all that information, we can cross-check it with various records to learn if the plaintiff has lawsuits or has sought medical care under some variation of his name," says DeMey, who's designed similar "escape-proof" questions about employment, lawsuits, health history, etc.

Where researchers look for misinformation

Here's how DeMey and his analysts zero in on key information.

Social Security numbers. Verifying this nine-digit number is the most important tool investigators have in tracking down fraud, because a discrepancy leads to other avenues to pursue. "Change one digit on a Social Security number, and you have a new identity," says DeMey. The Social Security number is made up of components that tell you what state it was issued from and the approximate year. For example, numbers that start from 050 to 134 were issued in New York. If the claimant says in his interrogatory that he lived in Georgia most of his life, that may be a red flag that something is amiss.

"There are lots of reasons someone may use a phony number," DeMey says. "They could be wanted for a crime, or they might be a deadbeat parent behind on child support payments. Spending time verifying the number can lead us to whether additional names were ever used, to see if the claimant's stated date of birth matches up, and whether various employers and time frames match up."

Liens, judgments, and court records. Once investigators know all a plaintiff's name variations, a review of his litigation history can be fruitful. "Often, the plaintiff will state that he's never been treated for a condition or injury before," says DeMey. "But a search may turn up numerous suits against other health care providers, or by providers against the claimant."

Investigators also look at records from small claims courts. "A chiropractor or other health provider might have sued the claimant for nonpayment," he adds. "Then we can subpoena the records and match up the dates. We had one case where a plaintiff had sued 11 health care providers regarding an injury she claimed our doctor had caused."

Investigators also search the litigation histories of expert witnesses who testify for the plaintiff. "One expert had 29 medical malpractice cases filed against him, and his insurer had paid out plenty," says DeMey. "We gave that information to our defense attorneys, who destroyed his credibility on cross-examination."

Divorce records. As part of the financial settlement in one divorce case, IRS documents had been submitted to the court. They contained information that differed substantially from the information in the malpractice suit. "The plaintiff showed the divorce court that his income was decreasing during the period leading up to the alleged negligence, but he showed us that his income had been increasing," says DeMey.

Bankruptcy records. Bankruptcy petitioners are generally told to list everybody they think they owe money to, no matter how small the debt. The plaintiff's list of creditors often contradicts the information supplied to the malpractice insurer.

If a petitioner incurred bills for medical treatment and filed for bankruptcy before being sued by the provider, the bankruptcy records may be the only way to learn of that earlier treatment. Bankruptcy records also list employers, income sources, addresses, family members, and business operations. They may name an employer that the plaintiff failed to mention during interrogatories. Out-of-state activity may cause investigators to conduct court searches in those states.

Employment records. "When someone fills out a job application, he tries to make himself look as solid as he can," says DeMey. "He's probably aware that few companies do much background investigation, so he can lie with impunity. Or he may tell the truth, not realizing that the information contradicts something he'll later say in a malpractice claim."

In one case, a man sued his doctor for causing blindness in one eye. But on an employment application he'd completed some 18 months before the alleged injury, the man had answered the question, "Is there any medical condition we should know about?" In his own handwriting, he'd replied, "I am blind in my right eye." Without the personnel file, that information might never have been revealed.

In another case, a woman who had breast augmentations sued her doctor, claiming the procedure had created open sores with constant discharges due to infection. The woman said she couldn't work, much less go out in public very often, because she was embarrassed that her clothes were continually stained.

Employment applicants are typically asked to list their previous employers. Once one employer was found, investigators quickly turned up two others. All three personnel records were subpoenaed. "The result showed a five-year period of employment with three large companies," says DeMey. "Each required pre-employment physicals. So we got those records as well. None of the doctors, X-ray technicians, or nurses ever observed or noted any such condition. We then interviewed supervisors and co-workers, and none said they noticed any problem. And of course, we had proof that she was working when she said she couldn't."

Health records. On the interrogatories, claimants are told to list any physician they've seen over the previous 10 years, along with any pharmacies they've utilized.

"A woman died, and the medical examiner ruled it a suicide," DeMey recalls. "Her husband and several adult children sued her physician for prescribing painkillers for a protracted period of time, ultimately causing her death because he failed to monitor her properly.

"We pieced together the true story. We ultimately identified more than 30 pharmacies and many treating physicians. The woman had gone into one medical office building and sought treatment from four different physicians on the same day, each time complaining of extreme pain. The medical histories showed that she had lied to each of them. She had denied any other medical treatment or the use of medications. She returned to several of these doctors and persuaded them to renew her pain medication.

"She had saved all of the prescriptions and filled them on the same day at various pharmacies. We were able to prove that she had intended to commit suicide and had her children help her in getting the medications," he adds.

Motor vehicle records. Why should it matter if a plaintiff in a malpractice case has a speeding ticket or a drunk driving citation? What does that have to do with his medical treatment? Perhaps nothing. But checking motor vehicle records can tell investigators where a plaintiff was at a given time, often during the same period he claimed he couldn't leave his house or drive.

"Motor vehicle records provide solid leads to other avenues of discovery," says DeMey. "In cases we examined over a two-year period, 28 percent of claimants had auto accidents they hadn't revealed to us. About 12 percent of the cases involved either traffic summonses or arrests for drug possession or driving while so intoxicated that their licenses were suspended or revoked. About 11 percent of the claimants provided addresses different than those we had a record for."

Was anyone issued a summons? If so, court transcripts may be available. A police officer's account of an injury may contradict what the plaintiff is claiming in the malpractice suit.

Criminal records. "We don't necessarily care if a plaintiff in a malpractice action got arrested for disorderly conduct, drunk driving, etc.," says DeMey. But an arrest report may include a photograph and physical description that could contradict the malpractice claim.

"In one case, this burly truck driver was suing his physician over a neck injury," he says. "We found out that he'd been arrested. He'd started a fight at a bar, and it had taken four police officers to subdue him. He'd hurt his neck while they were wrestling him to the ground. The police took him to the hospital for treatment, and we got those records. But the truck driver had claimed in the malpractice suit that there was never anything wrong with his neck until the doctor committed negligence. The arrest and hospital records proved that the injury occurred in police custody—two weeks before the man ever saw the doctor he was suing."

 

. Malpractice Fakery: How high-tech private eyes catch malingering plaintiffs. Medical Economics Jul. 24, 2000;77:122.