Many years ago, I treated a patient for neck and arm pain. I removed his cervical disc. The procedure was uneventful, and by all measures, he should have returned back to work quickly. (Many years later, a surgeon removed a cervical disc fragment from me and I went back to work part-time the following day). The patient, a postal worker, did not go back to work quickly. In fact he never went back to work at all. He said he was too weak to even lift a cup of coffee to his lips. He had zero objective neurologic deficits – and I was skeptical he was disabled.
Unbeknownst to me, this postal worker bragged to a fellow employee how he was scamming the system and would soon be collecting permanent disability paychecks — all courtesy of Uncle Sam. Did this new confidante succumb to envy? Hell no. He was a bigger person than that. He called his boss and a sting operation was birthed.
The FBI (or some similar federal organization) got involved. They posed as marketing experts and called the postal worker – explaining he had been randomly selected to receive a Nordic Track (cross country skiing machine – remember those?). All he needed to do was give his honest feedback about the machine. The “marketing experts” showed up in a truck and looked like they were struggling to unload the Track. My patient volunteered to help, carrying the Nordic device up his stairs. Next, my patient was videoed cranking up the resistance to the highest possible level; and cross country skiing like an Olympian. His feedback – he loved it. Thought it gave a great workout.
Remember, this was the guy who struggled with a near-weightless coffee cup.
I saw the video. A sting in action. A scam being terminated. And Mr. Postal Worker was sent to prison for attempting to defraud the federal government of cash.
I remember how amused I was to see that video – and felt justice had been served.
The following real-world vignette reminded me how arbitrary and capricious the legal world can be.
I learned of an orthopaedic surgeon who took care of a worker’s compensation patient. Ultimately, the orthopod restricted the patient’s activities to no lifting over five pounds. At some point down the road, the orthopod was asked by her carrier to view surveillance video footage. This request was made via subpoena and he was asked to testify under oath. In the video, the patient was engaged in activities that, on its face, exceeded the restrictions imposed. And the orthopod understood the video surveillance to be part of a larger fraud investigation related to the patient’s workman’s comp claim. The doctor agreed that the patient’s activity exceeded the written restrictions – as any doctor would have concluded.
His testimony became the basis for the Board of Medicine investigating his license. The Board claimed that he violated the patient’s presumed confidentiality and acted as an expert as opposed to the treating doctor. In doing so, he was told he ceased advocating for the patient and, instead, was advocating for the carrier. The Board claimed he acted unethically.
The orthopod believes that had he just clarified his words in the written record, the Medical Board would never have propelled this case. In other words, had he just stated that “my record states the following X, Y, Z. Whether or not I view the video, if you are asking me if the hypothetical activity exceeds my written restrictions, to clarify, the answer is yes.” – there would have been no ethical problem. Apparently, it’s his conclusion related to his watching the video that put him on ethical notice.
It’s difficult for me to believe that clarification of the orthopod’s written record versus stating the obvious in the context of a video could be the difference between ethical and unethical behavior; one that would put his license in jeopardy. I’m certain that this conclusion would surprise many doctors who believe when they are compelled by the state to testify truthfully vis a vis, they must do so; and indeed, do so. It surprised me. The outcome of this Board investigation is still pending.