Dr. John Gaffney, who frequently examined employees in New Jersey workers' compensation cases, provided treatment and made permanency evaluations, recently pled guilty to a federal fraud charge. Filed on September 22, the doctor's guilty plea consisted of one count of conspiracy to commit healthcare fraud. Specifically, he admitted to signing more than 200 fraudulent prescriptions. These facts raise questions concerning the use of Dr. Gaffney as an expert in pending New Jersey workers' compensation claims.
Even the possible revocation of Dr. Gaffney's medical license will not render him incompetent to testify as an expert. Under New Jersey law, any person who has the requisite knowledge via skill, experience, training or education on a subject is competent to provide expert opinion testimony on that subject. N.J.R.E. 702. Strictly speaking, there is no requirement that a witness be licensed in his or her field to qualify as an expert. Of course, the guilty plea may be used to impeach Dr. Gaffney's credibility. This is where New Jersey employers have their greatest possible leverage, in working to convince a Workers' Compensation Judge (WCJ) that Dr. Gaffney's guilty pleas for signing more than 200 fraudulent prescriptions undermines his credibility to the extent that it cannot be credited in any permanency decision.
There are three scenarios where this is relevant, and below are our recommendations for handling each:
Pending litigation where an evaluation has been scheduled but not completed, the evaluation being for treatment or permanency:
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While many employee attorneys have already cancelled scheduled evaluations with Dr. Gaffney, we advise making the WCJ aware that Dr. Gaffney's opinions were sought by the employee for the case. This will be a short term situation, as over time, we expect the employees' bar will try to distance itself from Dr. Gaffney and make no new appointments with him.
Pending litigation where Dr. Gaffney already completed an employee evaluation:
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We advise that negotiations proceed on the issue of permanency. The employee's attorney arguably has a weaker hand, given that his expert's credibility can be undermined by his having pled guilty to fraud. Thus, consider embracing the idea that this doctor and his guilty plea are attached to either the employee's treatment or the permanency evaluation. Use that handicap as a strength to negotiate lower permanency ratings. But where Dr. Gaffney has been used to support a motion for treatment at certain levels, we recommend fighting the case, emphasizing the doctor's fraud plea while in court, and working to win the WCJ on a more appropriate treatment regimen.
Pending litigation where evaluations have been completed but with ongoing contested issues resulting in the need for a trial:
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We advise demanding Dr. Gaffney's report. We expect that in this scenario, employees will seek a new permanency evaluation. Compare the two for inconsistencies and make the WCJ aware of what the overall credibility problems are with the employee's case.
Comment: Opinions of Dr. Gaffney will vary from Judge to Judge, but given the heightened national attention on needless prescribing of certain drugs and the consequences of those prescriptions on society at large, and in New Jersey in particular, those doctors who are caught committing fraud involving the dispensing of prescription drugs, and their patients, could face an uphill challenge in court on the issue of credibility.
For more information, please contact Jeffrey D. Newby at jnewby@wglaw.com or 856.667.5804, or Robert R. Hanneman Jr.at rhanneman@wglaw.com or 856.779.7010.
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