Using Prior Testimony to Unmask Bias
When an expert’s bias can be inferred from their court testimony or judicial decisions, courts are far more inclined to recognize a presumption of bias, typically rebuttable but sometimes conclusive. Insurers also face greater scrutiny of their reasonable measures to ensure impartiality and neutrality when they have advanced knowledge of the expert’s potential bias.
To shed light on this insidious issue, case studies have been compiled where courts have exposed vital players involved in using biased experts to minimize claim benefits. These case studies serve as a clarion call for transparency and accountability, highlighting the roles played by insurers, benefit plans, and related parties.
A few examples are presented to highlight the issues. Please check back as the many case-studies are added to the examples below.
Insurers and Benefit Plans
As the gatekeepers of claim payouts, insurers and benefit plans are responsible for ensuring fairness and impartiality in the claims process. Their conduct is typically evaluated by applying selection bias criteria, scrutinizing the methods and motivations behind their choice of experts, and the measures they have taken to ensure neutrality and reliability.
Radford Trust v. First Unum Life Ins. Co., 321 F. Supp. 2d 226, 247, fn. 20 (D. Mass. 2004) rev’d on other grounds, 491 F.3d 21 (1st Cir. 2007). The court analyzed 12 UNUM denial of benefits cases reversed de novo, and 18 more reversed under the more deferential arbitrary and capricious or abuse of discretion standard, holding that “an examination of cases involving First Unum . . . reveals a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics”.
Third-Party Administrators
Third-party administrators play a crucial role in the claims process. They manage claims on behalf of insurers and benefit plans. Their conduct is typically evaluated by applying selection and compensation bias criteria, examining their expert selection and the potential financial incentives that could influence their decisions.
Vendors and Intermediaries
Vendors, such as medical record review companies and third-party providers of forensic engineers or medical examiners, can significantly influence the claims process. When these vendors engage biased experts, they become enablers of an unjust system. Their conduct is typically evaluated by applying selection and compensation bias criteria, ensuring their expert selection and compensation practices are free from undue influence.
Experts
The experts lie at the heart of this issue, and their objectivity and integrity should be beyond reproach. Their conduct is typically evaluated by applying compensation bias criteria and scrutinizing potential financial incentives or conflicts of interest that could compromise their impartiality.
Hangarter v. Provident Life and Acc. Ins. Co. (9th Cir. 2004) 373 F.3d 998. The court determined that the insurer exhibited bias in selecting and retaining Dr. Swartz to perform an independent medical examination. Dr. Swartz had been retained by this insurer nineteen times between 1995 and 2000, and in thirteen out of thirteen cases involving a similar disability issue for this insurer Dr. Swartz had rejected the insured’s claim that he or she was totally disabled. The insurer’s retention letter for Dr. Swartz also included the insurer’s opinion that there were no objective findings for a disabling injury, which may have suggested a desired outcome and predisposed Dr. Swartz to reaching the same conclusion.
This collection of case studies illuminates the insidious practices of those prioritizing profits over fairness. By exposing the truth and holding these entities accountable, change is catalyzed to ensure that every claimant receives the just and equitable treatment they deserve, free from biased experts.