Dec 27 2013
We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.
I am scaling back my orthopedic surgery practice because I am moving towards retirement. I supplement my income by doing independent medical examinations (IMEs) for defense firms and insurers in personal injury cases.
One of the reasons that was appealing is because it seemed a low risk endeavor. Now that I am so close to retiring, I wanted to keep my risk of being sued as low as I can. The problem is that I am now actually being sued for malpractice over an examination that I performed on someone I examined who was suing her landlord over a fall.
She claims I injured her back by asking her to bend and twist so that I could evaluate the area of a spinal fusion she received after a car accident several years ago. She also claims to have re-injured her back in the fall.
What’s going on here? She knew that I was working for the defense and she even signed a form that said that she understood my seeing her for the IME did not constitute a doctor-patient relationship. How can she sue me if I am not technically her doctor?
The doctor who sent this question clearly understands that there cannot be a claim of medical negligence without there being a duty owed to the patient. It is a breach of that duty causing the claimed harm that serves as the basis of the suit. And that duty arises from the physician-patient relationship.
That said, the doctor performing IMEs for law firms and insurers is only there because of his medical expertise, which would normally underpin the formation of the physician-patient relationship, even if only in that temporary setting.
This conundrum was addressed by the New York Court of Appeals in a 2009 case, Bazakos v. Lewis and the Court reached a conclusion that most jurisdictions share.
In that case, Bazakos, who was suing about injuries sustained in a car accident. He was examined by Dr. Lewis, who had been chosen by the defendant.
Almost three years later, Bazakos sued Dr. Lewis for injuring him during the examination.
Since the Statute of Limitations for a medical malpractice action in New York is 2 ½ years, Dr. Lewis moved to dismiss the case as time-barred because it was brought too late for a malpractice action.
The trial court granted that motion but Bazakos appealed.
He argued there cannot be a medical malpractice action absent a physician-patient relationship and that it was impossible for there to be a physician-patient relationship in this setting because he was being forced to be examined by Dr. Lewis by his adversary. That adversary had chosen Dr. Lewis and only wanted the examination performed to help defeat Bazakos’ claim.
He therefore argued that this was not a time-barred medical malpractice action but was instead a personal injury action, which had a 3 year Statute of Limitations and so was still timely.
The majority of the appellate justices accepted that argument and restored his case
Dr. Lewis appealed that ruling even higher. That court reversed the Appellate Division, again ending (this time with finality) the case against Dr. Lewis.
The Court’s reasoning: “…the act on which Bazakos’s lawsuit is based – Lewis’s manipulation of a body part of a person who came to his office for a physical examination -constitutes “medical treatment by a licensed physician,” and the negligent performance of that act is not ordinary negligence, but a prototypical act of medical malpractice.”
The Court then noted that “We see no good reason why the statute of limitations should be longer than it would be if Lewis were accused of making exactly the same error on a patient who came to him for consultation or care.”
Although this result worked out well for Dr. Lewis, it is essential to note that the Court acknowledged that what a doctor does in the limited setting of an examination – like an IME – is little different from care delivered in the ordinary medical setting. (So, if Bazakos had sued within the 2 ½ year window for the negligently performed IME, he might have prevailed.)
The Court then went on to make the critical point that any doctor who does IME’ needs to bear in mind: that while they are not under a fully ongoing physician-patient relationship, they are still under one that applies to the scope of the work they are doing on the patient.
The New York Court then quoted from a Michigan case to delineate the limits of that non-traditional relationship between a doctor and a person being examined in an IME: “It is a limited relationship. It does not involve the full panoply of the physician’s typical responsibilities to diagnose and treat the examinee for medical conditions. The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports. The limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.”
In other words, in examining the patient, don’t do that examination ineptly.
The Court then stated more eloquently that the duty to not cause harm in carrying out the examination would be a predicate for a malpractice claim, not a general negligence action.
This duty would apply even in the setting that the questioner wrote about in which the examinee actually signed a form that stated that there was no physician-patient relationship created by the IME.
One outstanding question the Court did not address is what duty applies if there is an incidental but important finding identified during such an examination – such as when a doctor examining a plaintiff’s spinal curvature as part of an IME notices a suspicious skin lesion on the back in a location that the plaintiff could not see independently.
The answer is that that doctor has a duty to tell the examinee what was seen and that it should be followed-up (and the doctor should document they did so). The IME doctor, though, has no duty to order a biopsy or to call the examinee’s doctor or to make sure that the examinee actually followed-up on the provided information.
The importance of telling the examinee is because it is not reasonable to assume that a defense attorney or an insurer will follow up and tell this patient, for example, he may have an evolving melanoma.
The duty in the IME setting is therefore limited to (1) not affirmatively causing harm of your own; and (2) informing the examinee when a problem may be present that they would otherwise be unaware of.
The questioner in this case was asking about IMEs but the final issue for us to address is whether the rules are the same for all limited medical examinations.
The answer resides in the purpose of the limited examination.
The narrowness of the duties that apply to IMEs is because those are examinations performed solely to see if the plaintiff’s claims are hogwash or not. However, in other limited examination settings in which there is no traditional physician patient-relationship, such as employee physicals, school and team physicals and insurance physicals, the scope of the limited duty widens to an actual diagnostic role. That is because the purpose of the examination is to determine the examinee’s state of general health. That duty is to detect accurately and report appropriately.
A duty to tell the examinee if something serious is noted is also present if they would not otherwise be able to find out about it, just as it is in the IME setting. Again, just as in that setting, there is no duty to undertake referrals or treatment for it.
This last point is a potential liability pitfall. The examining doctor may feel that he can reasonably assume that the examinee will be told of the problem by the entity that commissioned the exam since, after all, the exam was commissioned to find out about the examinee’s state of health.
However, that is a medicolegally very risky approach since it literally puts a physician who possesses critical knowledge and has the patient in front of him in the position of deliberately choosing to say nothing, instead relying on the hope that a clerk in an employee health service will flag the matter, that a school nurse will call the child’s parents or that an insurance underwriter will tell the examinee the exact reason for coverage being declined. That is not a defense that anyone wants to raise in front of a jury.
Consider that in any setting in which your report is not going directly to a treating physician (i.e.; not just a medical director of an insurance company) you should mention any serious issue that you detect to the examinee/his parent or guardian, and recommend that it be followed up with the examinee’s own physician. Then document briefly that you did so.
So, as a rule of thumb, in any setting in which you are functioning as a physician, assume that a duty which courts will see as inseparable from being a physician will follow you to varying degrees, irrespective of what the person you are examining may have been told or may have signed. The actual limiting parameters of this duty are, at the lowest end, to not cause a harm yourself and, at the highest end, to detect issues that a competent physician would have detected under the circumstances and to notify accordingly, and in all cases it is prudent to inform the examinee if you find something serious.
In summary: Even in settings in which no physician-patient relationship is formed, a doctor still has a limited duty to perform examinations so as to not harm the patient and therefore can be sued for malpractice if such an injury is claimed. In other restricted settings the limited duty will include diagnosis even though treatment is not involved. Examinees should be informed of serious findings but the examining doctor is not responsible to follow-up on those.
[Medical Justice note. The rules are simple in relationships in which no traditional doctor-patient relationship is formed. When you examine the patient, do so with reasonable care. And, if you see something, say something. That second piece of advice sounds like advice dished out by the TSA.]
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