Turkewitz Sued By “Liar” Doctor, Michael Katz

In a complaint eerily reminiscent of Rakofsky v. The Internet, Eric Turkewitz is being sued by former orthopedist turned defense expert witness Michael Katz because Queens Supreme Court Justice Duane Hart found Katz to be a liar.  And how, one might wonder, can we be certain, absolutely certain, that Justice Hart found Dr. Katz lying?  The complaint says so:

The surreptitious (and misleading) videotape should have resulted in an immediate mistrial, but Justice Hart inexplicably concluded that Dr. Katz lied concerning the length of the examination despite the fact that he clearly testified he could not remember how long the examination took. Justice Hart proceeded to berate Dr. Katz both on and off the record during numerous subsequent proceedings and inexplicably demanded that Dr. Katz contribute money towards a settlement with plaintiff. Justice Hart called Dr. Katz, among other things, a “no good liar” and a “thief” and implied that he was a “spy” with “little beady eyes.”

The problem is laid bare that Katz, having gotten slammed by the judge as a liar, feels compelled to lash out at somebody, and since Justice Hart is off the table, decided to see if he could shake up Turk for writing a series of posts about it at New York Personal Injury Law Blog.  Unlike Katz’s self-assessment, that he is a “is an accomplished, well-known and, until recently, well respected, physician,” who was “universally regarded as a professional and unflappable witness,” liar was not a characterization to his liking.

It started with Katz’s testimony about the length of time spent performing a defense medical examination of the plaintiff in the case (which, for reasons that will never make any sense, are called “Independent Medical Exams” because it sounds so much better than “exams by the insurance company’s hired gun), which was surreptitiously videotaped.

The question raised was the length of time that Katz actually spent examining the plaintiff, meaning not the time spent taking a cursory medical history, but hands-on examination.  The complaint alleges that Katz couldn’t remember, so when pressed to give his “usual,” he testified “I think a range of between ten and 20 minutes would be appropriate.”

The complaint tries desperately to spin the video to prove that the medical examination lasted more than one minute, 56 seconds:

Plaintiff’s counsel not only misconstrued the nature of Dr. Katz’s testimony but also misrepresented the length of the recording. The recording lasted for five minutes six seconds. The video also begins some time after the plaintiff entered the exam room and it is not clear how much longer Dr. Katz and the plaintiff remained in the exam room together after the video terminated.

The problem with video, of course, is that no amount of spin changes what the video shows.  The issue was never the length of the video, but the length of the medical exam.

The balance of the Rakofskyesque complaint makes the usual allegations trying to smear Turk as a “blogger”:

Turkewitz is a prominent attorney who primarily represents plaintiffs in personal injury cases. He also maintains a popular internet blog called the New York Personal Injury Law Blog. Turkewitz’s blog routinely attacks the insurance defense industry including doctors who perform IME’s such as Dr. Katz. Turkewitz attempts to generate interest in his site by posting seemingly provocative and/or scandalous material.

This has nothing to do with the fact that Justice Hart found Katz to be a liar, of course, but it’s all that Turk’s fault because he posts “provocative and/or scandalous material.”  Turk’s the Harvey Levin of “prominent” personal injury lawyers.

The allegations against Turk border on the surreal:

Turkewitz’s statement, made in his July 8, 2013 Blog Post, that “Last week a state trial judge unsealed a record showing falsified testimony by an New York orthopedist who conducts up to 1,000 medical-legal exams each year” is false misleading [sic]. There is no credible evidence in the record that Dr. Katz falsified his testimony. This statement unfairly and inaccurately implies that Dr. Katz had been charged with and/or convicted of criminal perjury.

So the statement is totally accurate, but Katz claims it “implies” something entirely different than what it says?  Katz alleges that Turk’s fault is that he relied on the words of Justice Hart rather than revisited the testimony personally, took Katz’s side and reached the conclusion Katz would have preferred. Because being called a liar by the judge made Katz feel bad, and posting that the judge called Katz a liar so that he couldn’t keep it under wraps made Katz feel even worse.

The complaint, which involves other defendants including defense lawyer, Paul Kassirer from Lester Schwab, who made the mistake of also revealing Katz’s very bad day, goes on for 65 pages, and doesn’t get any better.

One question that invariably pops up when someone decides that suing a blawger for telling the truth too well is a good idea, because his client who is already terribly butthurt by the publicity he’s received: Has he never heard of Barbra Streisand? To the extent anyone was previously unfamiliar with Michael Katz having been called a liar by Justice Duane Hart, chances of their learning about it have just improved dramatically.

And to the extent that Katz might be able to spin it so the blame falls on the judge for getting it wrong, the video tells the story. Did he really think cheap talk in a complaint was going to overcome those lying eyes?

There is another thing, however, that is conclusively proven by this lawsuit seeking $40 million in compensatory and punitive damages against Turk, a few times over.  New York needs Anti-SLAPP legislation, and until then, the judges who catch these misbegotten efforts to shut down blawgs for posting information that butthurt docs don’t want anyone to see need to impose available sanctions.

 

32 comments on “Turkewitz Sued By “Liar” Doctor, Michael Katz

    1. SHG Post author

      That’s the problem for those of us who “attempt to generate interest in his site by posting seemingly provocative and/or scandalous material.” We are awful people.

      1. KronWeld

        Well, I for one, am awed by you.

        And thank you for keeping the math simple. It has been a good 25 years since I’ve been in a math class. I’ve forgotten most of the advance algebra, calculus, discrete math, differential equations, trig, geometry I ever knew.

          1. Jim Cline

            Does this mean if I can’t do the simple math required for your authentication answer it’s okay to put 42?

            1. the other rob

              I hadn’t realized that the Guide was popular over here. As somebody who listened to its first broadcast on the wireless, over there, I’m delighted to see it referenced.

            2. KronWeld

              Please, the Guide is popular where ever civilized man lives.

              Don’t Panic and Carry a Towel.

              Especially on May 25th.

  1. Erik Hammarlund

    This is more idiotic than eerie. Do you think the plaintiffs realize Turk was actually defendant and acting counsel in Rakofsky v. Internet?

    It’s stupid to sue a blogger.

    It’s even more stupid to sue a blogger who has recently demonstrated that he is more than willing to go to court and win on a nearly-identical issue.

    Man, I cannot WAIT to see the rulings on this one.

    1. SHG Post author

      As I said, the only shame is that there is no Anti-SLAPP statute in place. Once was bad enough. Twice is too much.

  2. Catherine Mulcahey

    I am provoked and scandalized and IT IS ALL YOUR FAULT, because I don’t remember reading Turkewitz’ blog about the good doctor. Should you be added to the case, I am prepared to testify regarding my feelings, about which I am an expert, upon receipt of expert witness fees and expenses.

  3. Jim Tyre

    I believe I have discovered the key to the case.

    Plaintiff entity has a principle place of business, but defendant entities have only principal places of business. If defendants have no principles, then …

  4. Max Kennerly

    If you think the case is patently frivolous — which it plainly is — why let Dr. Katz’s lawyers off the hook? People should know what kind of firm Ruskin Moscou Faltischek, P.C., is, and how seriously to take them.

    1. SHG Post author

      I don’t know the firm or the lawyer, other than their website suggests that defamation isn’t one of their practice areas. Perhaps someone who has greater insight into the firm could pick up that piece and run with it.

    1. SHG Post author

      Good question.

      Update: Eric has no idea, but he’s asked his tech guy to find out what’s happening.

      Update 2: And it’s back. I attribute it to the sudden onslaught of a million hits.

  5. Bruce Coulson

    The Streisand Effect, now faster than ever! “It’s faster than my exams!” exclaimed the reknowned medical expert Dr. Katz! Get yours today!

  6. Tim Knowles

    He’s really opening himself up on the wage loss issue. It is possible that in past cases, as en expert, he has tried to minimize his earnings from these exams. In this case he will try to maximize them. There will be a lot of fun discovery if it gets that far.

  7. sceptic

    Off topic, but – I was surprised that during the perfunctory range of movement exam, the doctor never asked the patient if his shoulder hurt as it was held and moved into different positions.

    Shoulder pain was after all, the complaint.

  8. david

    If I may make a medical point, I am an orthopaedic surgeon; and a sometime board (Oz) examiner, and trainer. This guy would have failed his Fellowship exam if this was the performance he brought. Off topic, but is anyone aware if AAOS (American Academy of Orthopaedic Surgeons) has been approached for comment?

  9. Pingback: Shooting the Messenger (I’ve Been Sued Again) – New York Personal Injury Law Blog

  10. Jaded

    I think you’re being a bit overly dismissive of the merits of this lawsuit. Especially by comparing it to Rakofsky. This IME doctor appears to have concrete evidence of very damaging comments that actually caused a measurable drop in his revenues. And what of his point that his usual custom and practice was to take 10-20 minutes for an IME but that he didn’t remember this one? Perjury would have been if he emphatically claimed that he DID recall this IME and that it took him 10-20 minutes. But he didn’t claim that. So he didn’t lie.

    He may not be the most sympathetic plaintiff on earth. But it seems like there’s enough here to let a jury decide whether they like him or not. And that’s not a Rakofsky claim.

    1. SHG Post author

      You’re confusing the doctor’s beef with the judge’s finding with Turk’s reporting of the judge’s finding. There is absolutely no question that the Justice Hart found Katz to be a liar, exactly as Turk reported. The contention that Turk is somehow precluded, and therefore liable for defamation, from reporting the truth about the judge’s finding because Katz disagrees with it is spurious.

      As for his “concrete evidence,” only if by concrete you mean Katz’s view of his facile testimony versus the judge’s. That ain’t exactly concrete.

      This was precisely Rakofsky’s argument, that the judge in D.C. was wrong about him when he pronounced him a 6th Amendment violation, and therefore it was defamatory to report what the judge said. Rakofsky lost. So too will Katz. And finally, characterizing what Katz performed as an IME (and characterizing any insurance company doc’s exam as “independent”) is a bit too Orwellian.

      1. Jaded

        I’m not trying to argue the merits of the case to a jury here. I’m saying that you’re being overly dismissive. The theory of the case is clearly based on the fact that the judge incorrectly castigated him for lying, which is proven by the lack of action on the judge’s threats (like reporting him to the DA.) Whether reporting on the judge’s comments in the innocent manner you suggest Turk did was not defamatory strikes me as a jury question. I’ve looked at his post and am not seeing language that qualifies for a defense MSJ.

        What’s concrete, only in terms of his initial allegations without the benefit of scrutiny yet, are his revenue drops combined with the quite damning emails from the defense bar list serve. Those are pretty good facts to make out a prima facie case. Again: not Rakofsky.

        I take it from your last point that you like the plaintiff bar and dislike the civil defense bar? Because you know that plaintiffs also rely on “independent” medical experts too, right? I’d be perfectly in favor of eliminating that word from the both sides that routinely and misleadingly use it.

        1. SHG Post author

          Your point was clear the first time, but defamation does not, as a matter of law, occur when relying on the judge’s findings. It might strike you as a jury question, but that’s simply not the law. Civil Rights Law §74. This isn’t subject to personal feelings. Just the law.

          As for your final point, that’s rather curious. Plaintiff’s medical exams are plaintiff’s. Defendant’s are IMEs. I’m fine with eliminating the false descriptor of “independent” all around, but I suspect the defense bar won’t agree with either of us.

          1. Jaded

            I don’t agree with you but I’ve been wrong before plenty of times. A ruling on the motion to dismiss will resolve the issue in your favor if you’re right.

Comments are closed.