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The Editor Rants on a Letter from CMLS's Lawyers Threatening a Libel Suit
By Marjory Harris, Esq.

   

In response to a letter dated March 26, 2013 from lawyers for a QME outfit threatening a libel suit over an editorial on the QME system published in July 2010, the editor revisits the subject of “The QME Process: Forensic Reform or Doctor Roulette?”

   

I will not repeat the parts of the editorial CMLS Lawyer claims were libelous, so as not to invite future rants from these folks, although I do stand by my comment: “We are bogged down in a myriad of regulations, forced to rely on the opinions of carpet bagging traveling docs who process many patients a day.” This problem was partially addressed by SB 863, but was certainly fair opininion at the time and protected by the First Amendment.

 
It was fair opinion at that time: “We are bogged down in a myriad of regulations, forced to rely on the opinions of carpet bagging traveling docs who process many patients a day.”

The letter to the Editor from CMLS Lawyer states:

“The above false and unprivileged statements that were disseminated in your article have caused and continue to cause my client substantial financial damages in that the article has exposed CMLS to hatred, contempt, ridicule and disgrace; and it has caused CMLS to be shunned and avoided. Moreover, it appears that your article was intentionally intended to disparage CMLS' trade by inducing others not to deal with CMLS, which has caused actual pecuniary damage.”

 
“the article has exposed CMLS to hatred, contempt, ridicule and disgrace; and it has caused CMLS to be shunned and avoided.”

Backstory

First, the back story: For some years the Commission on Health and Safety and Workers' Compensation (CHSWC), known as “Cheese Whiz,” has been studying the QME process. Around the time of my editorial, CHSWC was again looking into the QME process and its problems and invited public comment. I sent them my editorial, but I am quite certain it had nothing to do with their making major changes to limit QME locations, which became part of SB 863.

The preamble to SB 863 declares, inter alia:

“(f) That the performance of independent medical review is a service of such a special and unique nature that it must be contracted pursuant to paragraph (3) of subdivision (b) of Section 19130 of the Government Code, and that independent medical review is a new state function pursuant to paragraph (2) of subdivision (b) of Section 19130 of the Government Code that will be more expeditious, more economical, and more scientifically sound than the existing function of medical necessity determinations performed by qualified medical evaluators appointed pursuant to Section 139.2 of the Labor Code.” (emphasis added)

The effect of changes SB 863 made to Labor Code §139.2 go beyond eliminating their opinions on “medical necessity.” QMEs were limited to 10 locations under Sec. 139.2(h)(3)(B). That alone could decimate the business of companies like CMLS LLC.

 
The effect of changes SB 863 made to Labor Code §139.2 go beyond eliminating their opinions on “medical necessity.” QMEs were limited to 10 locations under Sec. 139.2(h)(3)(B). That alone could decimate the business of companies like CMLS LLC.

The CMLS LLC Mystery

According to their current website, the company was “founded in 1986 to provide administrative services to physicians who perform medical legal or forensic evaluations.” On 2/12/10, CMLS registered this trademark: “THE LEADER IN QME MANAGEMENT” noting under “Goods and Services”: “Front office and administrative support services to qualified medical evaluators, namely, providing facilities for business meetings and business support staff services, appointment scheduling services, billing services, medical transcription services, and business records management services.”

“Business meetings”? Is that the name for the medical examinations they used to do in every nook and cranny of the state before SB 863 decimated their number of offices?

Their current website also notes: “Referrals are made directly to the physician; CMLS does not recommend or promote any of the physicians. Physicians contract with CMLS for its administrative services. Each physician exercises independent medical judgment.

CMLS is a privately held limited liability company and the physicians do not have a financial interest in CMLS.” There is no phone number, only an email address.

Why does CMLS make such a mystery of who they are and whose medical-legal evaluations they schedule and where? Other major services have websites that list their locations and examiners:

Edington Medical Group
Newton Medical Group
Arrowhead Evaluation Services
Parthenia Medical Group

CMLS used to have more of an Internet presence. I found thanks to Google a domain report on CMLSllc.com, which I paid $49 for and downloaded. After all, if someone is threatening to involve me in a lawsuit, I want to know what I can about them, through legal means.

In a screenshot from 2005, this company described itself as “a professional practice management company. For over 20 years, we specialized in providing the management and administrative support for physicians who specialize in performing medical legal evaluations.” The page goes on to say, “You get immediate access to all clinic locations, well-trained competent administrative & clerical staff, scheduling, transcription, billing, accounts receivable and collections.”

Over time, the website material shrunk to a few sentences. At the same time, everyone else is amping up their web presence.

This brings to mind a fact of the Internet: many things once on line persist indefinitely, like the chicken pox virus which can cause shingles 60 years or more later. So while my former publisher removed the article CMLS is objecting to nearly 3 years after publication, after I forwarded the threatening letter, who knows if it is cached somewhere?

I wonder too, how can an outfit about which so little is known and knowable, which does not recommend or promote any of the physicians who use its services, have suffered financial loss because of my comments about two of the physicians who at the time the editorial was published used their services? CMLS Lawyer states, “your article focuses nearly all of its attention on Dr. Fisher's alleged incompetency as a QME. However, your article incorrectly avers that Dr. Fisher is “one of their [CMLS] doctors.” CMLS does not have a contractual relationship with Dr. Fisher (CMLS also does not have a contractual relationship with Dr. Glancz - one of the other QMEs misidentified as a “CMLS” doctor). In short, your article attempts to improperly link QMEs such as Dr. Fisher and Dr. Glancz to CMLS when no such relationship exists.”

At the time the editorial appeared, both doctors did their evaluations through CMLS. I had fact-checked all statements I made about the two doctors. The information was public record from the Medical Board of California and the cases listed on the San Bernardino County Superior Court website. I interviewed some lawyers who successfully sued Dr. Fisher. I had depo transcripts where he testified under oath. Neither of these doctors contacted me threatening to sue because truth is a defense.

Now apparently Dr. Fisher books through another service. We cannot go back and rewrite history, CMLS Lawyer. And we cannot rewrite editorials ad infinitem.

 
“Business meetings”? Is that the name for the medical examinations they used to do in every nook and cranny of the state before SB 863 decimated their number of offices?

Why a threat to sue so long after publication?

I wonder, did the allegedly defamatory article from July 2010 sit in CMLS Lawyer's backlog for almost 3 years, put off for a billable event when work sloughed off? Or did it just come to his attention, and why now?

Are drop-offs in accounts receivable my doing? Or the result of long-festering backroom deals that culminated in the stealth attack of August 2012 that led to passage of SB 863 during the final hours of the legislative session? See Rosemary's Baby Redux: How the Labor Code Got Hijacked to Hell.

Entire industries change overnight when the State legislates or uses its rulemaking powers to make changes. If your client's industry is less lucrative, blame CHSWC and the others who discerned that medical-legal mills were allowing some doctors to get most of the business.

I do not submit this information with any malice, CMLS Lawyer. I just want to clarify what I meant in the article you said was defamatory. If your client has a certain reputation, it may have been brought on by those who use their management and administrative support -- the physicians. If your client is suffering economic losses, it may have been brought on by legislators and the forces behind SB 863. And you can't sue them.

 
Are drop-offs in accounts receivable my doing? Or the result of long-festering backroom deals that culminated in the stealth attack of August 2012 that led to passage of SB 863 during the final hours of the legislative session?

Marjory Harris, Esq.

Marjory Harris began practicing law in 1974 as a defense attorney and later became an applicants' attorney and a certified specialist. She continues to represent injured workers and mentors attorneys on big cases.

www.workerscompensationcalifornia.com

 

Reach Marjory at (888) 858-9882 or email: MHarrisLaw@verizon.net

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