Radiologists can make or break the lawsuits of injured workers by ordering multiple surgeries that drive up the value of their claims.
Editor’s note: This is the second article in Legal Newsline’s series highlighting the players in a system that leaves injured workers, often undocumented immigrants, with surgical scars, bills from attorneys and high-interest loans to pay off. Read part one here.
NEW YORK – An immigrant who left Guatemala with a second-grade education found himself in Queens three years ago loading scrap metal onto a truck. When his boss told him to save a long piece to sell later, he attempted to wrest the girder onto the top of the truck, but lost his grip and fell, breaking his left wrist.
Over the next two days, Julio Cesar Puac met with lawyers. A month later, they filed his lawsuit. And in the year that followed, he underwent at least six surgeries - but none were to his broken wrist. Doctors arranged by his lawyers instead operated on the rotator cuffs of both shoulders, his spine and each knee.
“He has been turned into a veritable pincushion, subject to six surgeries, none of which were for his wrist,” says the company Puac sued.
All those surgeries and medical diagnoses turned what would have been a routine workers’ compensation claim over a broken wrist into a lawsuit potentially worth millions of dollars. Verdicts in cases brought under a controversial New York law, like Puac’s is, have reached eight figures.
At the center of the process are doctors – physicians who diagnose not only a multitude of injuries but tie them all back to a single workplace accident.
Puac testified that he can no longer run, jump or work out at his Planet Fitness – “My whole body hurts,” he said at a deposition. His lawyers say that’s because of the fall. The other side says it’s because of the half-dozen surgeries performed to drive the value of his case up.
His case – filed against the owner of the building where the scrap metal was found, BG 37th Avenue Realty - says the fall left him disabled with a fractured left wrist, ligament tears in both knees and ankles, damage to multiple discs in his spine, “internal derangement” of his right and left elbows and a future filled with more surgeries.
It’s hard to tell what, if any, conditions Puac’s body held before the fall. Though he’d come to America from Guatemala more than a decade earlier, he testified he never saw any doctors prior to his fall for any pain and does not have a primary-care physician. His lawyers objected to BG 37th’s demand for health records in the five years before the fall.
Insurance companies and defendants like BG 37th have alleged in multiple lawsuits that doctors are working hand-in-hand with plaintiff attorneys to fabricate medical injuries and increase the value of their lawsuits, often brought on behalf of undocumented immigrants. In a Brooklyn courtroom, they say, a case involving spine surgery is worth as much as $5 million, compared with $250,000 for a simple broken wrist.
All the immigrant needs to do is go under the knife, sometimes after receiving an up-front, high-interest loan to pay off old debts.
One key player in this scheme, they say, is the radiologist, who can examine CAT scans and MRIs and find signs of injury that require surgery. With those diagnoses in hand, lawyers have the chance to refer their clients to friendly surgeons whose procedures can dramatically inflate the value of a claim.
“In reality, without the radiology component, all of it falls apart,” said Daniel Johnston, a partner with Willis Law Group who represents insurers facing construction injury lawsuits. “The MRI people are not out there chopping people up. But they are the linchpin to the entire scheme.”
Puac’s lawsuit provides a road map for what insurers say happens almost daily in New York. Records filed in his case show the day after he fell off the truck, Puac went to the emergency room at Elmhurst Hospital, where CT scans of his limbs and spine found no evidence of serious injury beyond the wrist.
The day after that, Puac was meeting with attorneys at William A. Schwitzer & Associates, who brag on their website about winning “hundreds of millions of dollars” for clients in construction accident lawsuits. Schwitzer didn’t respond to a request for comment.
Filings in the ensuing litigation show that before receiving any hospital records, Schwitzer had arranged for Puac to meet with a workers’ compensation lawyer as well as three medical specialists including Dr. William King, a hand specialist.
Puac sued in February 2022 and by May, radiologist Dr. Thomas Kolb had performed MRI scans of Puac’s knees, ankles, both shoulders and spine, diagnosing serious injuries virtually everywhere he looked despite the hospital’s earlier negative findings. Puac eventually underwent half-a-dozen surgeries, including left-ankle arthroscopy and painful bone-shaving procedures on both shoulders.
BG 37th, the defendant in Puac’s case, complains it shouldn’t even be in the suit, since the worker was employed by an outside contractor and injured following his boss’ orders after removing the metal from its property. But under New York’s unique Labor Law 240, workers can not only collect workers’ comp from their employers (Puac settled his WC claim for $90,000) but sue everyone associated with a construction site for any injury remotely related to the force of gravity.
The statute, commonly known as the Scaffold Law, only exists in New York and has raised building costs to the point that Liberty Mutual has excluded coverage for construction in the state. And U.S. Rep. Nick Langworthy, R-N.Y., has introduced a bill that would mean the Scaffold Law’s rules aren’t in play on any project built with federal money.
Claims like Puac’s still wouldn’t be worth much without the help of doctors like Kolb. Without a diagnosis of injury, surgeons won’t operate. And without surgery, plaintiffs can’t claim nearly as much in damages. So plaintiff lawyers at Schwitzer and other firms specializing in construction accidents have developed close ties with medical providers they repeatedly refer clients to.
Doctors don’t work for free, of course. But plaintiff lawyers also can tap a network of litigation funders that will extend thousands of dollars in fees to treating physicians, backed by liens against whatever the client ultimately collects. With the financial risk largely eliminated, Johnston said, lawyer-affiliated doctors have no incentive to carefully screen patients and in fact have a large incentive to find injuries in every patient they see.
“With the only limitation on income being getting the facility stocked full of patients, this incentivizes doctors to act in the manner which they are aware their referral source wants – here, finding injuries that don’t exist, overtreating as much as possible, and performing needless surgery,” said Union Mutual Fire Insurance in a lawsuit against doctors and lawyers.
Dr. Kolb and his lawyers didn’t respond to requests for comment, although in a court filing they say the fraud claims are unsupported. Allegations against Kolb were echoed by a former partner in a lawsuit over the breakup of their once-lucrative imaging partnership, however.
In that lawsuit, Dr. Jacob Lichy accused Dr. Kolb of altering Lichy’s medical reports “to include non-substantive modifications in order to enhance their value in personal injury litigation, in order to ingratiate himself with referring attorneys at the expense of my reputation.”
Lichy said Kolb had been upset that Lichy had beaten an aggressive cancer diagnosis, keeping Kolb from taking over their business. Lichy died years after the case settled.
Another physician who frequently supplied evidence in construction accident lawsuits was Dr. Kevin H. Weiner, whose practices finally caught up with him in 2023 when the New York Department of Health charged him with 20 counts, including performing unwarranted tests and permanently banned him from providing surgical or invasive treatments.
In some cases, the claimed surgeries may not have happened at all. In an affidavit filed in a worker’s lawsuit against Turner Construction, Dr. Yong Kim, director of degenerative spine surgery at NYU Langone Medical Center, said post-operative MRI scans of the plaintiff’s back did not show any evidence a plaintiff’s surgeon had actually performed the disc repair he claimed.
Insurers have begun fighting back, filing racketeering lawsuits against what they say are rings of doctors and plaintiff attorneys who have fabricated evidence of injury in thousands of cases across New York. GEICO has won some significant rulings, including a federal court injunction this year against doctors, chiropractors and acupuncturists seeking to collect millions of dollars for allegedly fraudulent treatments under New York’s no-fault motorist insurance program.
In that case, GEICO said the defendants filed thousands of claims and collected more than $6 million before being blocked with the injunction.
In its counterclaim against the doctors who treated Puac, defendant BG 37th Ave. Realty said they “have intentionally mutilated a non-English speaking immigrant laborer with a second-grade education, premised upon an incident with an unrelated injury, to line the pockets of doctors and attorneys.”
