Is a physician who injures a patient during an IME negligent? Is there a patient – physician relationship during an IME? Many physicians believe because the IME is conducted at the request of a third party, there is no physician-patient relationship, and therefore no potential liability for malpractice. However, several recent court decisions have challenged that interpretation. In 2004, the Michigan Supreme Court found that if the IME’s alleged negligence caused injury to an individual while performing an examination, the physician could be sued for malpractice.

First, do no harm

In Dyer v. Trachman, 470 Mich 45 (2004), the Supreme Court held that an IME physician has a limited physician/patient relationship with the examinee giving rise to limited duties to exercise professional care. This would include the duty to perform the examination in a manner that does not cause physical harm to the examinee. In this particular case, the plaintiff had recently had surgery on his shoulder and advised the physician conducting the exam that his surgeon had placed restrictions on his range of motion. Apparently, the examining physician caused damage to the shoulder repair by performing passive range of motion, necessitating another procedure.

In the case Christine Stanley v. Robert R. McCarver, Jr., M.D., Osborn Nelson & Carr Portable X-Ray, Inc., 204 Ariz. 339, 63 P.3d 1076 (App. 2003), Ms. Stanley, a registered nurse, was required to undergo a chest x-ray for employment purposes. Dr. McCarver interpreted the chest x-ray and reported abnormalities that required serial x-rays for further evaluation. He provided that report to Osborn, Nelson & Carr, and they forwarded the information to the employer. Ten months later, Ms. Stanley was diagnosed with lung cancer. She alleged she would have been diagnosed earlier if she had been notified of Dr. McCarver’s report. The trial court granted Dr. McCarver summary judgment because there was no physician-patient relationship with Stanley. However, the Arizona Court of Appeals reversed and found that when an employer has referred a person for an examination, a physician has a duty to exercise reasonable care in conducting the examination, and this duty includes communicating any matter of concern or abnormalities about the examination directly to the person examined. This issue had not been addressed previously in Arizona. The Arizona Supreme Court concluded that the absence of a formal doctor-patient relationship does not necessarily preclude the imposition of a duty of care and affirmed the portion of the Court of Appeals opinion imposing a duty but vacated the remainder of the opinion and remanded the case for further proceedings.

In more recent Arizona litigation, the Court of Appeals found that “a formal doctor-patient relationship need not exist for a duty of reasonable care to arise.” Ritchie v. Krasner, 1 CA-CV 08-0099. The court held that when a doctor, in the context of performing an IME at the request of the insurance carrier, reviewed patient records, conducted an exam and rendered a report which was relied upon by the carrier and the worker, he assumed a duty to conform to the legal standard of care for one with his skill, training and knowledge.

The court found this duty to exist even though the doctor showed the examinee a written limited liability agreement, stating specifically that no physician-patient relationship was created in the context of performing an IME. The court found that although the agreement made clear to the worker that there was no doctor-patient relationship, this did not obviate the doctor’s duty of care. Subsequently, some experts have said the appeals court decision represents an expansion of an IME’s legal duties and could have a chilling effect on their participation in certain evaluations.[1] The ramifications of this recent decision have not been fully appreciated.

Source:  “Independent Medical Examination” in  Medical Legal Aspects of Medical Records, Second Edition, 2010.

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