Unfortunately, there is not a single, simple answer to this question, as the potential liability of a physician conducting an IME varies from state to state. However, this blog post examines several major themes and trends in the states on the exact responsibility a physician may bear when doing an IME.
States have historically found that there is no traditional physician-patient relationship between an IME physician and the examinee. This is important because a physician’s duty of care traditionally flows from the physician-patient relationship (not duty, no liability). However, an increasing number of States have begun to assert that a physician-patient relationship exists, albeit in a limited form. In the 2009 case Dyer v. Trachtmann, the Michigan Supreme Court found that there was a physician-patient relationship between a physician who, during an IME, had been accused of forcefully rotating the examinee’s rotator cuff during the examination, causing serious damage. In finding that there was a relationship, the Michigan court defined it as follows:
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.” [bold and italicization added]
The courts of several other states, including New York, have followed this approach. For example, in the New York case Bazakos v. Lewis, a physician had allegedly rotated the plaintiff’s head in a “forceful” way so as to cause a serious injury. However, in finding that the physician-patient relationship was limited, the court imposed a lower standard of duty towards the examinee. In general, a physician doing an IME faces less risk of lawsuit than if that physician was dealing with a typical patient. Nevertheless, the liability of the physician will generally be higher than it would be in states that do not find a patient-physician relationship. However, the exact degree of liability varies. The New York Appeals court in Bazakos v. Lewis, after adopting the Michigan approach, stated that the limited relationship created a “duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.” Similarly, the Supreme Court of Missouri found that “a physician who only provides an independent medical examination but does not treat the examinee ‘has a limited physician-patient relationship with the examinee that gives rise to limited duties to exercise professional care’” in the 2014 case Devitre v. Orthopedic Center of Saint Louis. There, the defendant physician was accused of physically assaulting and battering the examinee during the IME. At any rate, not all jurisdictions recognize this relationship. In 2010, the Alaska Supreme Court refused to recognize the existence of even a basic physician-patient relationship in a case involving an IME physician who had allegedly failed to discover and properly treat the examinee’s back condition. It is also important to note that the IME physician may face increased liability if he or she goes beyond “mere examination” and actually advises the patient.
Even if a state does not recognize a physician-patient relationship involving the IME physician and examinee, there is still potential liability for the physician. The Colorado Supreme Court, for example, found an IME physician liable for negligence in Greenberger v. Perkins, even though there was not a physician- patient relationship. There, the physician was found to have harmed the examinee’s back by making her do various lifting and pushing tasks during the examination. In general, states will mandate a baseline standard of care regardless of the existence of a physician- patient relationship. The exact standard varies from state to state, but there are some larger trends. Some state laws assert that the physician is immune from liability as long as the physician “acts reasonably” and “in good faith”. Others, like Arizona, establish a standard of “reasonable care”. A few states, such as Colorado, hold the physician liable only for negligent or intentional injuries. The Colorado Supreme Court even stated that IME physicians do not “owe the [examinee] a duty to diagnose correctly his or her condition”. A more specific standard charges the physician with performing the examination in “a manner that does not cause physical harm to the examinee”. Montana has perhaps the most specific baseline of liability:
Physicians (who perform an IME) [must] exercise the level of care required by the examiner’s professional training and experience and . . . make information the results of that examination available to the examinee if the physician’s findings disclose an imminent danger to the examinee’s physical or mental well-being.”
In sum, Physicians performing IMEs face far less potential liability than practicing physicians. Areas of potential lawsuits against IME doctors include:
- Hurting the examinee during the evaluation (e.g. from making the examinee twist in such a way as to hurt him),
- Failing to disclose an imminent danger to the examinee (e.g. a stroke in progress), and
- Assaulting the examinee (e.g. a sexual assault).
SEAK teaches viable strategies to manage the above risks. For a list of upcoming SEAK IME training programs please visit www.seak.com
About The Authors
James J. Mangraviti, Jr., Esq. is a Principal of SEAK, Inc., an ACCME accredited continuing education firm which specialized in IME Training for Physicians and publishes the National Directory of Independent Medical Examiners. Jim is the co-author of Writing and Defending Your IME Report: The Comprehensive Guide. Thomas Patrick is a 2016 JD candidate at Boston College Law School. He is a former clerk for the Honorable Dennis Curran of the Superior Court of Massachusetts. After graduation, Tom will be clerking for the New Hampshire Supreme Court.