
Finding fraud in bankruptcy cases
Read Time: 12 mins
Written By:
Roger W. Stone, CFE
Last year, Peter Khaimov, Alexander Gulkarov and Roman Israilov received multiyear prison sentences for orchestrating one of the largest no-fault insurance frauds in New York history. The conspirators robbed automobile insurance companies of at least $40 million by exploiting New York’s and New Jersey’s no-fault insurance laws that required insurers to automatically pay claims for certain types of auto accidents, according to the United States Attorney’s Office for the Southern District of New York.
The complex scheme involved bribing 9-1-1 operators, a New York police officer and hospital employees to obtain confidential information about victims of motor vehicle accidents. They were then subject to unnecessary medical procedures so that the fraudsters could overbill insurance companies. The victims received treatment at clinics controlled by the conspirators who falsely claimed that those medical centers were owned and operated by licensed medical practitioners to qualify for no-fault benefits from insurance companies.
In 2021, Danny Patrick Keating, Jr., a personal injury lawyer in Louisiana, pleaded guilty to defrauding insurance companies, commercial carriers and trucking companies by staging automobile accidents. According to law enforcement, fellow conspirator Damian Labeaud and others drove around New Orleans looking to deliberately collide against tractor-trailers. Once the staged accident occurred, Labeaud would leave the scene, and the owner of the car got behind the wheel to make it seem like they were driving at the time. Labeaud would then refer the staged collision to Keating, who filed lawsuits on behalf of the car owner and the passengers to win false injury claims.
These cases are just two examples of personal injury fraud that costs taxpayers billions of dollars each year. While data on this type of fraud can be hard to find, some statistics illustrate the size of the problem. According to personal finance website ValuePenguin, fraud related to bodily injury claims involving neck or back pains that are hard to dispute cost car insurance companies between $6.8 billion to $9.3 billion a year. And fraud that involves inflating the severity of otherwise legitimate injuries accounts for about 21% of those claims.
As in the first case, criminals that bilk insurance companies frequently “throw everything but the kitchen sink” (i.e., they include everything they can) at insurance companies or third-party payers to confuse them and hide the true nature of the fraud. Through this so-called kitchen-sink strategy, fraudsters might overwhelm insurance companies with false statements and material misrepresentations after a work-related injury, a slip-and-fall incident or a motor vehicle collision, whether actual, staged or contrived. They might overload claims personnel with information that could be factual but is unreliable or fails to justify the services rendered. Phony or inflated injury claims are the result. This tactic, known as “deception by inundation,” specifically occurs when “facts” presented with an injury claim are continuously pushed and expanded until the desired theme becomes established in documented or clinical form. Then, that record is used as needed evidence in securing a workers’ compensation award, a settlement from an automobile collision, short-term or long-term disability benefits, or a judgment from a general liability lawsuit.
The usual mechanisms used in this kitchen-sink strategy are fabricated complaints, magnified symptoms, unnecessary services, excessive testing in search of physical evidence to support a claimed injury and an unwarranted focus on diagnostic results. The strategy is enhanced when the “injured” party (a) falsely reports numerous related physical or mental health conditions, (b) pursues an excessive number of medical evaluations, (c) seeks various types of unneeded services and interventions and (d) exaggerates the true nature of the injuries. Allegations of pain and suffering, emotional distress and permanent loss of function are all part of a broader strategy.
The relationship between the parties involved in the kitchen-sink strategy is complex and varies from case to case. Sometimes, all parties are in on the scheme, but they allow the medical and litigation processes to play out like they’re dealing with a real injury. Other times, licensed professionals involved in the case may be unaware that a claimant is exaggerating their injuries. In other cases, unscrupulous health care practitioners and attorneys fine-tune processes to exploit an unsuspecting claimant who relies on their professional advice. In each scenario, dishonesty and undeserved financial gain are essential elements.
The parties may openly collude to stage accidents, fabricate records and coach claimants. However, claimants and facilitators may also work together in quiet cooperation, tacitly carrying out the scheme. The claimants embellish their injuries while health care practitioners follow a checklist of services and patient referrals.
Personal-injury-related fraud is multidimensional and often involves a central triad of participants: the claimant, health care practitioner and attorney. While there are other possible conspirators, such as first responders, emergency room personnel, tow truck operators and auto body shop employees, we focus on the central triad in this article. Each party within this triad may or may not know all the details of the fraud, other participants or their thinking. But typically, health care practitioners and attorneys play a role, and the claimant is the central figure in the scheme, as they’re the party pursuing the litigation. (See the diagram to the left.) Fraudulent claimants may persist with the severity of their injuries and further the scheme if a diagnostic test reveals a coincidental abnormality.
The model proposed here isn’t an illustration of every clinic or office that handles personal injury cases. But it shows how the kitchen-sink strategy works within a legitimate system. Activities deployed in this strategy include staged accidents, kickback schemes, attorney misconduct, fabricated medical records, false reports of injuries in MRI reports, billing for services not provided, and unnecessary or unwanted examinations, treatment, surgery or prescriptions. (See links to case studies in references 1-27 at the end of this article.)
Before their fraud is exposed, the triad of participants may feel safe behind the veneer of a legitimate business arrangement. The at-the-ready option of exercising one’s right to play ignorant may be the perceived failsafe. The following table offers hypothetical plausible deniability stances for each participant.
The following sections detail the motives and circumstances behind the participants who perpetrate personal injury frauds via the kitchen-sink strategy.
After an accident, claimants often undergo a temporary life change as they take time off from work for medical care and diagnostic tests. A claimant may determine independently or be coached to view regular medical visits as evidence of significant injury that will result in a larger payout from a lawsuit.
Take the case of a low-speed sideswipe vehicular collision where a person didn’t require medical attention at the scene and didn’t go to an emergency room. But days later, they visit a clinic with a host of musculoskeletal complaints they measure through high-level pain scores. Perhaps they report post-traumatic stress disorder (PTSD) as well. The perpetrator knows that each complaint will encourage a health care practitioner to do a full battery of tests and refer the perpetrator to health care specialists to reach a diagnosis, resulting in a medical chart that’ll be a convenient source of evidence for the litigation that awaits.
If they’re making dishonest medical claims, patients may be coached on what to say or seek self-education about medical conditions to advocate for themselves. Also, individuals can make erroneous statements when blaming someone else for their pain or when a medical-legal claim is involved, including unreliable histories, event fabrications, incorrect estimations of pre-injury status, inaccurate pain intensity recall or poor outcome reporting.
Common categories for exaggeration or fabrication include extreme pain complaints, reported difficulty moving without an assistive device (e.g., crutches), allegations of lost independence and claimants acting as if they’re unable to partake in a complete physical examination due to weakness, fatigue, pain or apprehension. When claims adjusters and arbitrators who aren’t medical experts observe all these elements together, they may be misled or overwhelmed when trying to understand the nature of the condition. This is where supportive documentation may be lacking to establish proportionality between the mechanism or magnitude of the traumatic event and the symptoms reported.In assessing a claimant’s credibility, the patient’s history is particularly important in determining where errors or false statements may exist. The following are possible red flags in a patient’s history:
The reliability of reported symptoms may escape scrutiny by a practitioner whose attention is directed at the patient’s needs ahead of any litigation. Practitioners may refer patients for other medical consultations and diagnostic tests to uncover the source of pain in supporting certain treatments or to rule out a serious condition.
Sometimes, trained health care practitioners who manage personal injury cases unwittingly become scribes and technicians. But documenting only what the patient states, without investigating further, isn’t what a licensed practitioner must do to establish the severity, cause, diagnosis and plan of care for the patient’s condition. This occurs, for example, when there’s no practitioner-recorded interview or basic patient education process for a person who reports extreme pain after an incident but appears relatively calm; or in the unrealistic case where a person independently stood and walked after reporting a 10/10 pain score of the low back. With that level of pain, a person might be unable to speak, and they could lose consciousness. Extreme pain would also make routine procedures impossible to tolerate.
A practitioner may need to discount behaviors that suggest the patient is magnifying symptoms, such as feigning a physical limitation during an examination that’s not commensurate with a discernible pathology. What might be lacking is documented evidence that the practitioner ruled out that the claimant reporting a 10/10 pain score was malingering or suffering from a psychological disorder (e.g., hypochondriasis). Predictably, either of these would be unresponsive to standard treatment such as prescription-strength medicine. The broader context here is that extreme pain scoring can be the basis for a fraudulent documentation process.
It’s typical for practitioners to document or explain their clinical decisions to address the patient’s specific needs or concerns. However, when the very same clinical decisions and types of referrals are made across different groups of patients and without regard for age, injury mechanism/magnitude, complaint profile, past medical history or whether there are other underlying diseases, the idea that the standard of patient-centered care is being followed is nullified. When to-do checklists of referrals and diagnostic tests govern personal injury cases, health care practitioners voluntarily relegate themselves to the status of technicians.
The to-do-checklist approach requires no thinking or clinical judgment, and is often accompanied by verbose, software-generated descriptions of a patient’s complaints, physical findings and functional limitations that bewilder the reader. While such descriptions seem to identify the cause and effect of a true condition, a closer inspection will reveal a purported set of facts that defy reason. To the untrained eye, the descriptions might appear legitimate. This is especially true when they’re presented as part of a file with many medical consultations, positive diagnostic tests and failed treatment approaches. However, to the trained eye, the records are unreliable, as conflicting information and inexplicable circumstances emerge. For example, a low-back disability index score of 70% cited by the practitioner would indicate a complete disability (e.g., a bed-bound state) or an extreme disability level. That score is inconsistent with a patient who can visit their doctor’s office without help.
A practitioner’s decision to refer someone for a particular diagnostic test could be based on a patient’s preference, potential patient safety concerns and the practitioner’s need to minimize professional liability risk. However, none of these reasons should serve as a de facto rationale for each unique patient scenario. A routine broad, “shotgun” approach to diagnostic testing doesn’t represent a supportable depiction of a patient’s health (e.g., after a vehicular collision, all four occupants receive the very same tests on or around the same date).
When practitioners apply diagnostic tests by rote, they may uncover normal “abnormalities.” For example, MRI studies have shown that people can have significant positive findings in the absence of symptoms. In part, this is true for the neck, lower back, shoulder, hip, knee and brain. (See references 28-39 at the end of this article.)
Under the claimant-practitioner scenario outlined earlier in this article, by the time a personal injury case reaches the point of litigation, everything’s been arranged for the presiding attorney. Whether this was accomplished via cooperation and dishonesty (intentionally) or to usher the patient through the system in a routine and mindless manner (incidentally), the result’s the same. As the legal process unfolds, there’s no need for attorney verification of anything. The established clinical record is put forth as factually accurate and a complete account of things. The claimant’s statements and correlating medical documentation attest to the damages such as the claimant’s pain, suffering and functional losses. There’s nothing else to consider.
Having an attorney advocate for a claimant provides a sheen of legitimacy to the claim. But behind the sheen are red flags that require further examination. A primary red flag is a claimant seeking an attorney before seeking medical assistance. This suggests that the claim is driven by financial interest. This fact, on its own, can be innocent but is significant enough to warrant scrutiny of any subsequent treatment.
In scrutinizing suspect claims, insurers utilize examinations under oath or informal interviews to get the background of the alleged accident, the claimant’s mechanism of injury, complaints of pain, and their understanding of the diagnosis and treatment. Attorneys for the claimant usually prepare the claimant for testimony in ways to suggest that the injuries were serious and that all treatment was necessary and proper.
This presents a symbiotic relationship between the attorney and the health care practitioner. The attorney wishes to present the idea of sufficient treatment to prove the claimant was seriously injured. The health care practitioner benefits from this relationship because they can monetize extensive treatment. Paradoxically, a legitimate serious injury has the same fact pattern. Thus, the challenge for an insurer is to differentiate the legitimate claims from the embellished or completely fabricated ones (e.g., resulting from accidents that are intentional and staged).
Insurers generally use independent medical examinations and peer review to determine necessity and cause of the claimant’s injuries and treatment. These tools can be useful but are limited for two primary reasons. First, the sheer volume of medical claims can overwhelm the claims handlers, and they can’t assess them quickly. Incidentally, in the early 2000s in New York State there was a 1,700% rise in no-fault fraud because of these tight time frames for insurers handling no-fault claims. (“No fault” refers to auto insurance plans that pay for medical expenses and lost wages for injuries from car accidents regardless of the party at fault.) This fact was noted in a New York Court of Appeals case from 2003 where the court stated, “Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud.”
In 2005, in resolving a personal injury case against a purportedly injured person, the New York Court of Appeals noted that “Abuse [is] abounds.” This sentiment resurfaced in 2011 when the same court determined that “No-fault abuse still abounds today.” In 2013, in response to the state of the motor vehicle tort system, Judge J. Smith stated, “Since the [no-fault] statute was enacted, false claims of serious injury have done much to undermine the legislative goal. A number of courts, including ours, have pointed out that the no-fault system is riddled with abuse.”
Second, independent medical experts may assume that the evidence presented by the health care practitioner is accurate. This assumption places the burden on the insurer to ascertain all relevant facts of the patient’s purported injuries. For example, in New York, an insurer who wishes to challenge a claim must disprove medical necessity.
Insurers need detailed claimant testimony to determine if a situation is suspicious. Essential testimony includes the mechanism of injury and the referral to the attorney and health care practitioner. They should pay attention to the details of the medical treatment provided, especially the health care practitioner’s explanation of the diagnosis and the patient’s progress.
Where the testimony is dubious, the insurer can present this evidence to experts and tribunals. This additional evidence allows insurers to place the burden of proving medical necessity to the claimant. By scrutinizing the testimony, insurers can shift the paradigm and avoid paying a line of claims that aren’t in good faith. This process is challenging but the only way to combat questionable claims.
Appellate courts in the U.S. have gone so far as to dismiss claims based upon alleged fraud on a summary judgment motion, a court application interposed before a trial where a court finds a case should be decided as a matter of law. In one case, the court found the videotaped confession of vehicle passengers sufficient to dismiss the claims of all of the vehicle passengers and medical providers. Another case involved the gathering of circumstantial evidence to prove that the accident involving various people was intentional.
A case ruling from 2023 highlights numerous principles raised in this article, with a summary judgment that an accident wasn’t legitimate because multiple red flags were found to be evident, i.e., numerous collisions with the same individuals, the same individuals weren’t in the vehicle, the individuals were related and the accident occurred with a UPS truck.
Courts have taken note of injured persons’ deceptions, overstatements of injuries by medical professionals, and the plaintiffs’ attorneys legitimizing claims that, at best, represent no more than temporary sprains and strains. The ideas discussed here identify dishonest and illegitimate claims, for which there are many examples that courts have rejected. As noted in the above passage, courts have dismissed claims on summary judgment, when either direct or compelling circumstances show that the claim emanates from deception, fraud or other deceit.
Just because something is possible doesn’t make it probable; nor does it summarily make it so. The presence of inundation tactics by claimants, health care practitioners, and attorneys need to be identified and factored into claims about the claimant’s alleged condition and the reported impairment rating.
Dennis DiGiorgi, DC, CFE, CHCQM, is a disability fraud examiner in New York’s Cooperative Disability Investigations Unit. As a clinical reviewer/insurance consultant, DiGiorgi has performed tens of thousands of medical-necessity reviews, including those originating from special investigation units. The research, ideas and opinions put forth in this article are DiGiorgi’s own and don’t reflect those of the State of New York or the Social Security Administration’s Office of the Inspector General. Contact him at drdigiorgi@aol.com.
Jason Tenenbaum is an attorney specializing in no-fault insurance benefits, personal injury practice, employment law and consumer protection law in New York and Florida state and federal courts. He’s tried more than 500 no-fault cases (both jury and non-jury), representing insurance companies and medical providers. Contact him at Jason@jtnylaw.com.
In personal injury cases, people often point to spinal injuries such as disc herniations as they seek to redress damages caused by accidents. It’s an easy method that fraudsters can leverage to game the system and build a case for compensation in a staged motor vehicle accident (MVA), for example. Here we look at why these types of diagnoses aren’t always the result of a fall or car crash and how a Certified Fraud Examiner (CFE) with clinical expertise can spot the difference.
For spine patients who report pain extending into an arm or leg, the go-to condition in personal injury cases is disc herniation with spinal nerve involvement (also known as radiculopathy). This is often called a “pinched nerve.” However, pain in an arm or leg can arise from other causes. Limb pain originating from other mechanisms can resemble or mimic pain from spinal nerves. (See references 40-49 at the end of this article.) All such mechanisms are integral to the education of orthopedists, neurologists, physiatrists and chiropractors.
Whether any diagnostic finding is the consequence of trauma, it’s often used to justify extra medical services and as evidence of injury for an eventual third-party lawsuit by the claimant. And primarily this revolves around a diagnosis of disc herniation. While other musculoskeletal conditions and PTSD may be reported by health care practitioners as well, the disc herniation diagnosis serves as the centerpiece to impairment ratings and lawsuits.
Any type or magnitude of trauma could result in a singular case of disc herniation injury with radiculopathy. This is true whether the person had preexisting and asymptomatic degenerative changes of the spine, or not. However, when almost all MVA patients in a health care practice are diagnosed with disc herniation-related radiculopathy, the basis for an accurate process should be questioned.
A large population study conducted in 2009 found that cervical and lumbar disc-related radiculopathy was relatively low following a motor vehicle accident. In fact, the same frequency of lumbar radiculopathy was seen in the MVA group and the non-MVA group (12%). The study found that most of those who were referred for testing after an accident didn’t have cervical (neck) or lumbar (low back) radiculopathy. Specifically, of 1,334 individuals, 8% had cervical radiculopathy and 12% had lumbar radiculopathy. That same study also found that of 23,317 individuals referred for such testing but didn’t have an automobile accident, 6% had cervical radiculopathy and 12% had lumbar radiculopathy.
Considering these facts, two things might explain the likelihood of high percentages of personal injury patients who allegedly have positive MRI results with reportedly positive EMG/NCV electrodiagnostic tests that help diagnose nerve damage or muscle disorders. First, the office in question primarily manages an outlier population of significant trauma cases (e.g., rollover accidents, high-elevation falls and collisions involving occupant ejections or vehicle extrications).
Second, something irregular could be happening in the practice. With any given clinical practice, the greater the percentage of MVA patients with cervical and/or lumbar radiculopathy, the greater statistical impossibility that the percentage is accurate. That might mean a greater likelihood that someone has falsified, fabricated or exaggerated the significance of the imaging and/or electrodiagnostic test results.
A CFE with clinical expertise may use pattern analysis to uncover excessive reporting of radiculopathy, amongst other irregularities. As the 2009 study above demonstrated, it’s unreasonable to expect that most claimants at a given clinical practice would have electrodiagnostic evidence of radiculopathy. Claimant and medical office surveillance, claimant examination under oath and expert-level peer review can add the evidence necessary for a final fraud determination by a court of law.
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