The National ME/FM Action Network's Position Paper
on
Independent Medical Examination in Canada:
The Need for Reform
Lise Noel, Ph D
(Member of the National ME/FM Action Network)
September 1999
(A Ph.D in History, Ms Noel has lectured extensively and written dozens of articles on the problem of human rights. Her book on the subject won the Governor General's Award (in French) in 1989 and the updated translation in English, INTOLERANCE: THE PARAMETERS OF OPPRESSION, published in 1994 by McGill-Queens University Press has received the American Gustavus Myers Center Award for The Study of Human Rights in North America.)
Table of Contents
Introduction
Flaws in the Independent Medical Examination System
"Independent" Medical Examiners in a Conflict of Interests
Attending Physicians Not Listened to
Absence of a Serious Process for Examining the Examiners
Ethical Problems That Confront Medical Examiners
Collusion with Sponsoring Institutions
The Misuse of Psychiatric Diagnoses
Abuse of Their Mandate and Abdication of Responsibility
The Need for an Overhaul of the Present System
Patient Complaints are not Enough in the Long Run
Getting at the Root Causes of the Problem
Basic Principles
A Concrete Example: the Colorado Model
Appendix
-
Bernard Kansky, Attorney-at-Law, "About Independent Medical Examinations", Quest, no 33, December 1998/January 1999, 2 pages.
-
George V. Rossie, Ph.D., Clinical and Consulting Psychologist, and R. Daun Gretzinger - I.M.E. Administrators, LLC, Denver, Colorado, "Making "Independent Medical Exams" Independent", Quest, "no 32, October/November 1998, 2 pages.
Independent Medical Examinations in Canada: The Need for Reform
The difficult situation that many patients are faced with when undergoing an independent medical examination in the present system, is not particular to one province or specific to the medical profession, nor does it affect only people who are ill with chronic fatigue syndrome (CFS) or fibromyalgia (FM).
The stakes are higher and ultimately have to do with the public good. The institutions that have to account for this situation are not only insurance companies - whether private, cooperative or mutual in their make-up - but government compensation boards and public pension funds dealing with disability cases, auto accidents, worker compensation injuries and general medical conditions.
There are - and that fact has to be stressed - individual medical examiners who are both conscientious and competent. But it is also a fact that the present system is basically unbalanced in that it so blatantly favours wealthy institutions and medical experts endowed with quasi-discretionary powers, that individual patients and attending physicians do not stand much of a chance of being fairly treated. Only a major reform can change that.
This process insures that the whole system is biased from the start. The most well-meaning physician cannot but be aware that should his diagnoses, although accurate, favour patients once too often, his chances of being an I.M.E. for long will be jeopardized.
Some doctors, such as Dr. Arnold J. Voth, an Alberta physician[1], who speaks of discrepancies in fees of about 5 to 10 times between experts and attending physicians, testify to that dilemma openly:
"The cold hard truth is that insurance companies will not pay these kinds of fees (...) to render a favourable judgment. However, much as they deny it, (I.M.E.s) have already been bought. I have always accepted an insurance company's request to act as an IME (...) As soon as it became clear that on occasion I might indeed support the diagnosis of CFS, such requests abruptly stopped coming my way".
Professionals who champion the right of patients to be treated fairly (Kansky and Rossie/Gretzinger) (1) strongly advise them to inquire either of the examiner or of the insurance company as to:
- the number of cases of the illness under review the examiner has treated in his practice;
the percentage of positive diagnoses he has made in such cases;
the proportion of his fees the examiner gets from doing I.M.E.s.
Dr. Voth's statement shows that making such a request is warranted:
"By now I have reviewed a number of such independent reports regarding CFS patients. (...) it is evident that not one of these independent examiners has seen, followed, or treated any significant number of CFS patients for any purpose other than to write up examinations denying their illness".
A major factor that undermines the credibility of "independent" medical examinations is the ease in which the medical opinion of physicians who know the patient best are frequently ignored. One hour spent with the patient will often be enough for an examiner to overrule the results of years of medical follow-up by family doctors and medical specialists they had referred her [2] to.
By so doing, I.M.E.s implicitly deem attending physicians either professionally incompetent or intellectually dishonest. Indeed, one cannot escape the conclusion that there are doctors out there who are dishonest or incompetent.
For either attending physicians do not know what they are doing or are in cahoots with malingerers, or medical examiners are unable to make an accurate diagnosis themselves or are in collusion with the institutions that are paying their fees.
Although Quebec's disciplinary code is recognized as one of the best, the College of Physicians in that province has sided with the experts in that sensitive matter. Published in March 1997, the English version of its guide The Physician as Expert. Ethical and Regulatory Considerations[3] clearly states that “(the attending physician's) role as expert is not easily compatible with the physician-patient relationship” (art. 1.1.3). As for the expert:
"He must remain independent (...), his role being first and foremost to assert the truth. Thus, he should avoid any form of accommodation, despite the fact that he is being paid by one of the parties to the dispute. (...) The physician whose services are engaged by a company as a consultant (...) may, despite this fact, act as a medical expert".
In other words, the better a doctor knows his patient, the less likely he is "to assert the truth" and, one must deduce from this, the more inclined he will be to help malingerers for free.
According to the College, the only physician who is deemed capable of "(maintaining) total professional autonomy" is the very one who "is being paid by one of the parties to the dispute"! This statement is all the more illogical since the College of Physicians admits to having had to produce its guide, in the first place, because of problems involving... experts ("Foreword"):
"An increasing number of complaints are being submitted to the Collège des médecins du Québec on questions involving the professional ethics, conduct and competence of physicians in their role as experts".
More than just unscientific, this bias is quite insulting to attending physicians and is bad for morale. Furthermore, it undermines the credibility of the whole profession in the eyes of the public as well as the essential trust that a patient must have in his doctor.
By so doing, the College of Physicians does not behave much better than the medical expert whom the Code of Ethics (2.03.31) and The Physician as Expert (2.1.3.2) advise to "refrain, without just cause, from any word or gesture that could lessen the confidence of the patient in his physician".
Absence of a Serious Process for Examining the Examiners
What is especially unpalatable is that the well thought out diagnosis of the attending physician, and of many experts in different medical fields, will be passed over in favour of the very flawed report of one examiner whose opinion is based on anything but good faith and rigorous criteria.
Among the many cases of examiners' medical reports on CFS patients that he has reviewed, Dr. Voth mentions the following:
"I have before me a 21-page report done by an IME on one of my patients diagnosed as having CFS by several physicians, including myself (...). The two pages that actually deal with the patient are riddled with factual errors of history taking and admit that a full physical examination was not done".
There are much too many examples of such cases. The inevitable question then arises as to how they are allowed to happen. For if it is true, as the Quebec College of Physicians states in the Foreword to its guide, that "the status of expert implies the recognition of a superior level of competence", one wonders why the examiner is not also examined with superior strictness...
A system that is based on the sole good will of the experts leave patients at the mercy of unscrupulous examiners who will not be averse to misrepresenting the real state of their health. Bernard Kansky, who recommends that patients not go to an examination unaccompanied, nevertheless warns patients (p.4):
"Finally, do not be surprised when ultimately you see a report which appears to have been prepared for some other patient, with some other illness".
However, the Quebec College of Physicians does not agree with that notion. Although the present process' dynamics is essentially adversarial, the College does not deem it necessary for the patient to record the interview or have a third party present, for fear that "this could create a climate of confrontation" (art. 2,2.2.2).
Ethical Problems that Confront Medical Examiners
Collusion with Sponsoring Institutions
Although the right to get disability insurance is earned by years of paying premiums, insurance companies see themselves as beholden first and foremost to their shareholders. As for those insurance companies which are cooperative or mutual in their make-up, they virtuously claim that they are protecting the rights of the group against the individual member.
Major changes are presently taking place in the Canadian market. The deregulation of financial institutions, the demutualization of insurance companies and Finance Minister Paul Martin's intention to let insurance companies become quasi-banks, can only mean that the search for profit will become the open goal of these companies.
And although the official mandate of government compensation boards is to protect citizens who pay contributions, a similar mentality prevails in their midst, where potential surplus monies are seen by governments as a means to balance their budgets.
In all these cases, the result is the same for the average citizen: she or he becomes the David that must take on the Goliath of Big Business or Big Government. This, in itself, is unacceptable. What is even more unacceptable is that "independent" medical examiners, that is professionals who are trained to heal, should side with Goliath.
And, when siding with powerful institutions against a sick person, I.M.E.s do not stop at writing biased medical reports. They also collude with them in requiring a patient to undergo useless medical exams or perform strenuous exercises that will set him back months and remain a constant threat over his head.
I.M.E.s will go along with companies that have the means to let things drag on for years while the patient's health or financial resources dwindle to nothing: two years will go by before a medical report is written; files will be lost that will have to be assembled again; previous doctors will now be working in different hospitals; lawyers will have moved on while new ones will have to get familiarized anew with the situation. In the meantime a decade will have gone by before a settlement takes place. Or a trial.
What was an exercise in going through hoops can also become a never-ending race. Failing to get what she is rightfully entitled to from her insurer, a patient might try to get disability payments from government compensation board (or vice versa).
But the very fact that her previous request has been rejected might very well hurt her case in the second instance. She may even be asked to undergo another medical examination with the very same "independent" medical expert who had been responsible for her initial request being rejected in the first place.
This last example of blurred jurisdictions is but one example among many. Another instance is that of "independent" medical examiners who, despite drastic budget cuts in the health system, have no qualms about availing themselves of the public facilities of publicly funded hospitals, to perform private medical examinations.
These are all very serious ethical issues. Whereas the average citizen is held liable for criminal negligence and is to help a fellow human being who is in danger, what kind of sanctions does a physician deserve who not only does not help the sick but actually hurts them? Should he not be held accountable for failing to abide by a principle that, as a physician, Hippocrates understood centuries ago: "First do no harm"?
The Misuse of Psychiatric Diagnoses
To suffer from a psychiatric problem is nothing to be ashamed of. Doctors themselves try to teach the public that pain is pain, whether of a physical or psychological nature. Many people who are trapped in a chronic illness would even trade it for a bout of depression: although hard to bear, one can hope to come out of it.
Unfortunately, psychiatric diagnoses are too often used as a weapon against patients. Well known in social psychology, this device, which "blames the victim", undermines the patient's credibility from the onset. In a way, these diagnoses serve the same purpose as those unknown viruses that doctors put forward when hard-pressed to find the cause of a difficult illness or faced with a chronic disease like FM or CFS. In this instance, the conundrum is solved by declaring the root of the problem to be "in the patient's head".
Physicians before them have used similar tactics, the burden of proof having also been put on people who were sick with what would eventually become known as lupus, Alzheimer's disease or multiple sclerosis. In an article entitled "A Piece of my Mind" and published in the Journal of the American Medical Association[4], a surgeon, Dr. Thomas L. English, describes his life as a patient:
"Four years ago I was diagnosed as having chronic fatigue syndrome (CFS). The experience has given me a new perspective of my profession, one that is not always flattering. In one early report, the average CFS patient had previously consulted 16 different physicians. Most were told that they were in perfect health, that they were depressed, or that they were under too much stress. Many were sent to psychiatrists".
So, it is far from surprising that psychiatric diagnoses are used regularly by insurance companies and government compensation boards. This way, not only is the patient deemed incapable of describing her condition accurately, but any "expert" will find himself in an ideal position to pinpoint - within an hour and "subconscious" as they may be - the "real" motives that drive her.
Let us get back to Dr. Voth's analysis of a 21-page I.M.E.'s report of which 2 pages are already full of mistakes (pp.1-2):
"The other 19 pages are an extremely rambling, disjointed, thoroughly subjective and often utterly irrational discussion of "illness seeking behavior", "somatization syndromes", "secondary gains", etc. // (...) The IME in question writes endlessly about the patient's "preconscious motives". Might he not do well to spend much more time considering his own preconscious motives?"
This verdict of malingering or psychopathology serves the expert's own "preconscious" [?] interests too well to be credible. But what we must really concern ourselves with are the preconceived notions that feed this kind of distorted views in the medical community.
The first such notion stems from the early definitions that were given of CFS, definitions that specifically excluded people who had gone through a psychiatric episode before. Understandably done for research purposes, this move ended up pervading clinical practice, as well, and being detrimental to very ill and very real people.
But how can any physician decree that somebody who has had psychological problems in the past cannot ever suffer from an organic illness again?' Do we dare deny the reality of an individual's cancer because he has gone through a depression ten years earlier? Why do it, then, in cases of FM or CFS?
Furthermore, how can scientifically trained professionals so easily confuse a consequence with a cause? Is it so difficult to fathom that to be struck down with a chronic illness can depress the bravest among us, or that people who have always worked hard and have lived a full life will not choose, from one day to the next, to go after the "secondary gains" brought on by financial straits or a war of attrition with an insurance company?
It is not only the fate of CFS or FM patients to be labeled negatively. Of over 200 I.M.E.s performed on auto accident victims, a Colorado psychiatrist did not find one example of subsequent emotional or intellectual problems that he did not attribute to "malingering" or "pre-existing psychiatric disorders". This included the case of a young man whose motorcycle had hit a truck and who lay in a coma for two weeks! (Rossie/ Gretzinger, p.4).
Although extreme, such situations are not rare.
Once a patient's status is reduced [let us call a spade a spade] to that of psychiatric patient, he can no longer claim the same degree of financial support from a government compensation board or an insurance company. Whether a person's psychological problems are real or manufactured by an I.M.E., this smacks of discrimination.
Although it is a violation of the Canadian Charter of Rights and Freedoms, the Quebec Charter of Rights and Freedoms, the Alberta Code of Ethics and the Ontario Code of Ethics to exclude from disability benefits a person suffering from a psychoneurotic or behavioral disorder, this practice is still going on.
Abuse of Their Mandate and Abdication of Responsibility
Furthermore, the physicians who overuse this type of diagnosis are not necessarily psychiatrists themselves. Already severely lacking in thoroughness within the practice of their own discipline, doctors who specialize in organic illnesses do not hesitate to overturn the reports of real psychiatrists in order to render a judgement of psychopathology. It may take years before such a diagnosis is overthrown in court.
But come the time to take responsibility for the dire financial and medical consequences that those prejudicial reports will have on the lives of very ill people, these same I.M.E.s demurely pretend that the final decision "is purely an administrative one".
It is in all good conscience that the insurance or government official in charge of making the final decision - sometimes a physician himself - will in turn revert to the expert's report to claim that "he had no choice" but to turn down a request for disability benefits.
Thus, nobody can ultimately be held accountable. Be it private or public, the machinery of big institutions sees to it that so many officials are involved and so many stages have to be gone through in the processing of a case, that the very human need to shirk responsibility is amplified.
Because they do sometimes stick to a narrow view of their mandate, more meticulous IMEs also end up doing a lot of harm to patients they know are sick. By insisting on basing their conclusions on "scientific" tests results only, they give insurance companies and government boards another way out.
But in so doing, I.M.E.s are behaving more like technicians than scientists. They are also failing in their role as actual experts which, as stated in the Quebec College of Physicians’ guide, is "first and foremost to assert the truth", even, one might add, if it cannot yet be measured in a lab.
And, whether behaving like technicians in the name of science or administrative constraints, let them be aware that they are eschewing the demands of their higher calling as physicians (The Physician as Expert, art. 2.1.4.; 2.3.1).
Let us not mince words here: it may take the expert only a couple of hours to seal the fate of a medical "case", but it is a very real human being who will be doomed to live a life of misery and despair, day after day, minute after minute, for years to come.
The Need for an Overhaul of the Present System
Patient Complaints Are not Enough in the Long Run
It is both unfair and inappropriate to expect patients to set the present I.M.E. system right by lodging complaints with their provincial College of Physicians.
This situation is inadequate for three reasons. First, because the root cause of the problem is structural. Second, because patients who already have to live with the dire financial and medical consequences of their biased reports should not have to shoulder the added burden of policing unethical professionals. Third, because complaints to Colleges of Physicians are one step too many to take for people who already have to contend with other powerful institutions.
On top of insurance companies, government compensation boards, lawyers firms and the courts, people who are sick with a chronic and not too well known illness like CFS and fibromyalgia, also have to deal with the pressures that come from their entourage.
Overburdened with the stress of having to take care of a constantly sick person, relatives may very well come to listen to the negative advice of the "expert" rather than to the claims of a maybe-not-so-ill-after-all family member. It may take years for better informed relatives and friends to finally come around to believing a loved one they had given up on years before.
Ultimately, the tremendous effort to educate both doctors and the public as to the reality of their symptoms and the need for them to help in the fight against insurance companies and government boards has to be made by exhausted patients themselves.
To this day, there are doctors who call on patients’ associations to get information they cannot obtain from medical colleagues who prefer to cut corners or do not wish to waste their time treating chronic or too little known diseases. Although conscientious physicians who are on the look-out for information deserve to be praised, is there not something amiss when the responsibility to educate falls on the sick?
Furthermore, doctors do not necessarily feel the need to reciprocate. Most of them do not even bother to acknowledge - let alone respond to - requests to put their names on a reference list of doctors willing to treat people with CFS.
A case in point: only 4 doctors out of more than a hundred who were contacted recently took the trouble to answer a questionnaire sent to them to that effect by the Association québécoise de I'encéphalomyé1ite myalgique (A.Q.E.M.), 2 of those 4 doctors having answered in order to refuse!
Finding a physician who will consent to treat them is the most pressing problem that confronts victims of FM and CFS. Why then be so surprised when desperate patients turn to alternative practitioners?
How dare the Colleges of Physicians then turn around and go after these therapists for "illegally" practicing medicine? If the physicians who have the right to practice medicine took the trouble to practice it in the first place, the need to sue "illegals" would not be so great.
And then there are the doctors who do not shy away from treating FM or CFS patients, but who refuse to fill out forms or write medical reports to help patients obtain disability benefits. These doctors object even more to going to court for their patients' sakes.
Although this behavior is shameful, can we totally blame these doctors when we know that the deck is stacked against them? As for those attending physicians competent and brave enough to side with patients to the very end, they cannot but share with them the mounting frustration that comes when one rejection after another is emitted by impervious institutions.
Faced with the impotence of his own doctor and the indifference of physicians as a whole, why should a sick individual - in the event that he is even able to do so - take it upon himself to overcome his own fear and risk losing the little that he has left, in order to lodge a complaint with a College of Physicians?
Even if he finally brings himself to do it, he will only have succeeded - if, indeed, he does - in putting a stop to one I.M.E. or two. Other unscrupulous or naive physicians will soon take their place in benefiting unduly from a system that is - and that fact must be stressed again and again - basically flawed. It is beyond the power and call of duty of one lone individual - and a sick one at that - to try and put the present system right.
Basic Principles
Thus, it is imperative that the control over this process be withdrawn from the grasp of financial, medical and judicial establishments, and that both the length and the cost of appeals be substantially reduced.
Finally, pressure must be brought to bear on the financial bodies concerned that they abide by the principles of the Charters of Rights and Freedoms like everyone else. They should not be allowed to discriminate on the basis of the types of illnesses that they are willing to cover; nor should they be granted the discretionary power - a power that the police themselves do not have vis-à-vis hardened criminals - to have patients followed.
In having the present I.M.E. system changed along these lines, the medical profession as a whole will benefit as much as the patients themselves. As Dr. Voth puts it (p.2), the very credibility of the profession is at stake here:
"These issues desperately need to be discussed by our profession. (...) Are we not laying ourselves open to very harsh and well-justified criticisms when we passively approve of individual members receiving absurdly high fees for rendering an ‘expected’ judgment?"
These members are well known in their local medical communities, and the provincial Colleges of Physicians that allow them to hold sway are likely to be laughed out of court when they next try to expose the so-called "quacks" of alternative medicine.
A Concrete Example: the Colorado Model
The "Personal Injury Protection ["PIP"] Program" puts at the disposal of the patient and insurer who disagree with a treating physician's diagnosis, a list of 5 health professionals from whom they are expected to choose an examiner they each trust.
These health care providers must not only be of the same specialty as the attending physician, but they must be actively engaged in clinical practice and experienced in the treatment of the disease in question. Furthermore, they have to have their practice in the same county as that in which the patient lives and must not earn more than half their income or spend more than half their professional time doing I.M.E.s.
The list of five qualified practitioners is sent to the parties involved within 5 days of the request. If the parties cannot agree on the choice of an expert, the patient and the insurer each strike out two names and the remaining practitioner performs the examination.
If either side questions the examiner's conclusions, a second I.M.E. may be set up according to the same procedures of selection. The decision of two out of the three practitioners concerned (the two experts and the attending physician) is then binding.
The party that requests an I.M.E. - usually the insurance company - pays the fee. The whole process must be completed within 45 days of a claim's being filed.
The blocks of five potential examiners are constituted at random from a database in which there are hundreds of names of health care professionals practicing approximately 25 specialties. In order to help the patient and the insurer make a sound choice of examiner, a biographical "dossier" including academic, financial and personal information is sent to them about each of the five candidates.
In June 1998, after having been in operation for a year and a half, 4600 requests had been processed through the PIP Program: 75% of the I.M.E.s performed to that point had upheld the diagnosis and the treatment of the attending physician (or provider), 25% had upheld them in part, and 5% only had deemed them totally unfounded.
From the start, this program has been extremely popular in Colorado and the Administrators believe that the only obstacle to its being used in other health sectors or countries is political:
"(it) could be successfully exported to many other geopolitical settings and could be applied to any situation in which an insurer requires an independent medical exam, including worker compensation injuries, general medical conditions, or disability cases. The principal rate-limiting factor in its application to other conditions is strictly political. It appears that the process, the technology, and the philosophy for providing truly "independent" IMEs now exist". [My emphasis]
This is certainly true of the Canadian provinces where a tradition of arbitration tribunals already exists both in the public and the commercial private sectors. Besides being fairer to citizens who are ill, a single body dealing with the whole gamut of disability issues that insurance companies and government boards have so far controlled, would also be less costly.
A reform such as this one would be enthusiastically received by the public and the media as a whole. The precedent exists and to procrastinate any longer is inexcusable: one more horror story would be one horror story too many.
What is at stake here is nothing more, but nothing less, than the basic and incontrovertible demands of justice itself.
[1] References are made throughout this document to articles on I.M.E.s written in Quest, a newsletter published by the "National ME / FM Action Network" a Canadian organization whose mandate is to protect the rights of people suffering from fibromyalgia and myalgic encephalomyelitis (or chronic fatigue syndrome):
- George V. Rossie, Ph.D., Clinical and Consulting Psychologist, R. Daun Gretzinger - I.M.E. Administrators, LLC, Denver, Colorado, "Making "Independent Medical Exams" Independent", no 32, October /November 1998, pp.4-5 (This article is in the appendix as it gives a full description of the new I.M.E. system used in Colorado);
- Bernard Kansky, Attorney-at-Law, "About Independent Medical Examinations", no 33, December 1998/January 1999, pp.3-4 (See enclosed article in the appendix);
- Arnold J. Voth, MD, LMCC, FRCP(C), ACP (Edmonton, Alberta), "Physician Addresses Peers re: The Ethical Issues of I.M.E. and CFS", no 34, February/March 1999, pp.1-2.
[2] When referring to patients, the words "he" or "she" will be used indifferently.
[3] If the present document often refers to the situation in Quebec, it is simply because the author, who lives in Montreal, is more familiar with it. However, as the title - Independent Medical Examinations in Canada - and some other examples that are used clearly show, the point is not to single out one province but to help improve things for patients all over Canada and, for that matter, all over North America.
[4] JAMA, February 27 1991, vol. 265, no 8. Published in The Messenger, the newsletter of "The M.E. Association of Canada", vol.3, no 8, October 1991, pp.9 and 12.