Dealing with Inflammatory Language in QME Correspondence
Recently there has been a troublesome trend in Med-legal cover letters in which misleading, incorrect, or blatant misstatements of fact and law have been included in cover letters to be provided to a QME or AME.
Examples of issues being seen in these cover letters include statements which are designed to misstate, mislead or even manufacture facts which are favorable to their position. Often, these statements cross the line between advocacy and deception.
Other examples of deception seen recently include misstatements of the AMA Guidelines. These often include purposeful misstatements regarding pages four and five of the AMA Guidelines regarding work restrictions to conclude that the AMA Guidelines “admit” that their “standard” whole person impairments are not accurate. (To support an Almaraz/Guzman finding by the QME or AME.) These nefarious statements include fragments of discussions which take the AMA Guidelines out of context to come up with the complete opposite conclusion of the AMA Guidelines.
In the recent case of Kilpatrick v. City of Chula Vista, an attorney sent a cover letter to both the opposing counsel and the Panel Qualified Medical Evaluator at the same time without sending it to opposing counsel 20 days in advance for review and possible objection per Labor Code §4062.3. Ultimately, the trial judge ruled that the aggrieved party was entitled to a replacement panel for the party’s violation of Labor Code §4062.3(b).
The court, citing Suon v. California Dairies, 83 CCC 1803, quoted several factors a trial judge could use in determining the appropriate remedy for a violation of Labor Code §4062.3(b), which included in part, the prejudicial impact versus the probative weight of the information; the reasonableness, authenticity and relevance of the information to determination of medical issues; attempts by the offending party to cure the violation including the timeline of events; specific factual reasons that justify replacing or keeping the current QME; whether there were good faith efforts by the parties to agree upon information to provide to the QME; and the constitutional mandate to accomplish substantial justice in all cases expeditiously, inexpensively and without encumbrance of any character.
In Kilpatrick, it was determined by the trial judge that the information in the proposed cover letter was misleading and inflammatory and warranted a replacement panel. Specifically, the court found that a party may not mislead, misstate or invent facts that are favorable to their position. In addition, a party should not present their version of facts as undisputed conclusions of fact or law as it will mislead the QME and often result in a report that is not substantial evidence.
At minimum, the following is recommended when dealing with these issues:
Any cover letters sent by the opposing party should be reviewed carefully. Often, these proposed cover letters are several pages long. Often, toward the end of these letters is questionable case law, interpretations of the AMA Guidelines and even references to inappropriate rating standards. Far too often, we receive files in which opposing parties’ cover letters were not even reviewed or objected to in advance of the evaluation.
Timely objections to inaccurate, misleading or inflammatory language in these cover letters should be objected to within the appropriate timelines provided by Labor Code. (See Labor Code 4062.3.)
If, as in Kilpatrick, the opposing party sends the offending letter to the Panel Qualified Medical Evaluator, despite an objection or without providing 20 days for your review and objection, a Declaration of Readiness to Proceed should be considered and the appropriate remedy, including a possible replacement panel, should be considered.
Finally, when drafting your own cover letters, please be mindful of the discussions in Kilpatrick and draft a letter which is both professional, accurate and one which you would not be embarrassed to explain in front of a workers’ compensation judge.