I was quiet last week regarding the burgeoning bribery fraud scandal coming out of California, where a hospital owner essentially has admitted bribing doctors and others to refer patients for possibly unnecessary and overpriced back surgeries in his facilities. The fraud perpetrated by these scumbags is estimated to have cost employers over $500 million, and has possibly ruined the lives of countless injured workers. The media and other industry bloggers, including Depaolo, Paduda and Workers Comp Insider have been adequately pounding away at this outrageous and unethical behavior. There is one point however, that I have not yet seen discussed in this conversation.

As possibly thousands of injured workers were put through overpriced, perhaps unnecessary and potentially disabling procedures, where were the attorneys for those who were represented? Where were the people who are supposed to represent them and watch out for their best interests? Is it possible some of them knew that something was not right, but chose profit over principle?

I am not anti-attorney, and Lord knows our system makes them a required element. However, attorneys, despite rumors to the contrary, are human, and subject to the same ethical challenges and lapses as any other person. Their actions in this story, or lack thereof, should not go without scrutiny.

I was at an annual meeting of the International Association of Industrial Accident Boards and Commissions (IAIABC) a couple years ago, where this very topic was discussed. In a “Meet the Regulators” session, one state regulator openly lamented his concern with the over utilization of spinal surgeries, and the damage it was doing to their constituents. Specifically, he asked, “How do we get the injured workers to stop submitting to needless spinal procedures that so often fail?” It is no secret that back procedures today have a failure rate of 40% to 50%. Those failures often require multiple follow up procedures that can also fail and only serve to increase pain and disability. This regulator was looking for a way to inform people of the risks, and to curtail the damaging overuse of these procedures. 

Help support children with hearing impairmentsI must note the room was filled with industry reps and regulators, and there was not an injured worker representative in sight. The overriding sentiment seemed to be that some (emphasize SOME) injured worker attorneys were knowingly steering their clients to doctors they knew had a propensity to operate, and by extension were likely to extend the case, extend the care, and extend the disability, thereby improving the financial outcome for their firm. This is not implausible. There are unethical attorneys, just as their are unethical doctors, hospital owners and insurance professionals. It doesn’t mean every apple in the basket is rotten.

I am not suggesting that any California attorneys were party to the bribery allegations now being made in the state. I am fairly certain, however, that some of them benefited financially from that activity.

Perhaps part of the problem is also philosophical. Injured worker attorneys often believe that the bigger the declaration of disability, the bigger the settlement, the bigger the win for their client. They can be true believers on this front. I have friends who are injured worker attorneys. They completely believe that a Permanent Total Disability designation, with an award that says the employee never has to work again, is a “win”. It is a view on which we often disagree, but that is not the point of this missive. The point is, this philosophical view lends itself to the extension of disability rather than recovery. 

Attorneys representing injured workers portray themselves as the defenders of the defenseless, the champions of the everyday man being abused by a cruel and heartless system. Fair enough. I would suggest that the representations portrayed, with the protections they convey, should be a double edged sword. Representing someones interests means just that; not furthering your own interests by sacrificing those of your clients. 

I must point out that it was not a group of applicant attorneys that pushed this investigation and exposed this fraud. It was the insurance industry footing the bill. 

Where were the attorneys in this process? Where was the protection from needless surgery? The system failed these injured workers in California. Greed, avarice and fraud manipulated, used and abused them, and no one stood in the way to stop it. We know that medical professionals, people sworn to “do no harm”, willingly operated for fun and profit. And it appears that the legal community sworn to “protect and defend” simply didn’t.

It is an abject failure that deserves further reflection and review. The inaction of all involved, including those who were complicit and did not act, should not escape the scrutiny of a justly outraged public.

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