Dr. S was stunned when the jury in his malpractice case came back with a verdict for the patient’s family. He looked at his attorney, aghast.

“How could they find me liable?” he demanded. “There was no clinician-patient relationship!”

The trouble started when Mr. F, a divorced, 53-year-old construction worker hurt his back while lifting heavy building materials on the job. After the injury, Mr. F went to his primary-care provider (PCP), who diagnosed a cervical and lumbar strain but did not order an MRI. The PCP advised Mr. F to rest and to avoid heavy lifting for a few weeks until the strain healed and the pain subsided.

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When the pain did not abate, Mr. F sought treatment from a chiropractor, but it soon became clear that this would not relieve his pain either. The chiropractor suggested that Mr. F consult a specialist.

Unable to work, Mr. F filed for worker’s compensation. Before the insurance carrier for worker’s compensation would approve a visit with a specialist, however, an independent medical examination (IME) was required to determine whether treatment was necessary and whether payment for such treatment would be covered.

The insurance carrier asked Dr. S, whose field was occupational medicine, to conduct the exam and answer the following questions:

  • Were Mr. F’s symptoms caused by a pre-existing back condition, or were they attributable to the accident at work?
  • What treatment would Dr. S recommend?
  • And was Mr. F capable of returning to his job, or should his work be restricted?

When Mr. F arrived at Dr. S’s office, he was asked to sign a form stating that he understood the purpose of the exam was to provide a neutral and independent evaluation of his injury to the insurance carrier and that the visit did not create a patient-clinician relationship with Dr. S.

After examining Mr. F, Dr. S came to a similar conclusion as Mr. F’s PCP: lumbar and cervical strain. He prepared a report for the insurance carrier stating that the injury was stationary, that there was no indication for any work restriction or further medical care, and that Mr. F could return to work. The insurance carrier conveyed the diagnosis to Mr. F, and based on this information, the construction worker returned to his job and did not seek further medical treatment.

Over the next several months, however, Mr. F’s condition continued to deteriorate and his pain did not relent. Unable to properly perform his job while suffering from such intense pain, he finally took early retirement from his employment. Eight months after the accident, Mr. F qualified for the state’s Medicaid program and could finally afford to see a specialist, a neurologist who diagnosed cervical spinal cord compression and ordered immediate surgery.

The surgery prevented further damage to the patient’s spine, but during the months between the accident and the surgery, the compression had caused part of his spinal cord to die, resulting in permanent damage. Mr. F developed central pain syndrome. The neurologist prescribed oxycodone for the constant pain, as well as sleep aids and muscle relaxants to reduce the patient’s nerve and muscle spasms.

Mr. F was forced to rely on his elderly parents and 25-year-old son for financial support and physical care. He decided to contact a plaintiffs’ attorney to discuss suing the clinicians who failed to properly diagnose his injury.

The attorney agreed to take the case, but before it got to court, Mr. F died of an accidental overdose of his painkillers. His parents and son took over as the plaintiffs, filing a medical malpractice and wrongful death action against Dr. S, the chiropractor, and the PCP.

Dr. S was shocked to be named as one of the defendants. He immediately contacted his attorney, who assured him that he could not be held liable because no clinician-patient relationship existed. “Mr. F signed a waiver,” said the attorney. “He acknowledged that the exam wouldn’t create a clinician-patient relationship. No relationship, no verdict against you.”

The jury, however, disagreed. After hearing days of testimony about the injury and diagnoses from expert clinicians on both sides, it awarded Mr. F’s family $5 million. Fault was apportioned between the defendant-clinicians, and Dr. S was found to be 28% at fault.

Dr. S immediately appealed the verdict. His attorney argued that Dr. S owed no duty of care to Mr. F, since he was functioning as an agent of the insurance carrier and Mr. F had signed the statement specifically acknowledging that the IME visit did not initiate a clinician-patient relationship.

The appellate court disagreed, upholding the jury’s verdict. The higher court ruled that an IME clinician still has a duty to comply with the standard of care applicable to someone with his skill, training, and knowledge and that Dr. S owed a duty to provide that care to Mr. F.

Legal background

The waiver that Mr. F signed did not impress the appellate court judges. They noted that Mr. F had relied on Dr. S’s determination that he was well enough to return to his job without further treatment. Consequently, he continued to work for months while his condition deteriorated.

Dr. S could be held responsible for the resulting damage, the judges decided. While they agreed that a clinician can notify a patient that the purpose of an exam is to assess his condition for insurance purposes, not to create a relationship between the clinician and the patient, the judges also ruled that such notification cannot absolve clinicians from meeting the usual standard of care when the insurance carrier requests recommendations for treatment. Patients cannot be expected to sign away their right to have a clinician act like a professional, the court said.

Protecting yourself

The appellate court judges admitted that this case could have a chilling effect on clinicians who perform IMEs, but they went on to state that “we do not hold that every IME clinician has a duty of care in every situation.”

In this case, in which Dr. S was asked to determine the extent of the injury and make treatment recommendations, he assumed a duty to conform to the legal and ethical standards of care—in other words, he owed Mr. F an adequate investigation of his pain and injury. Both the insurance carrier and Mr. F relied on Dr. S’s report, and the resulting delay in Mr. F’s treatment caused irreparable damage.

Even when you are conducting routine IME for insurance or disability purposes, it is essential to conduct the examination as carefully and thoughtfully as you would if the person were one of your established patients.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.