Perspectives
21 June 2005

Independent Medical Examinations: An Expanding Source of Physician Liability

Publication: Annals of Internal Medicine
Volume 142, Number 12_Part_1

Abstract

Employers frequently ask physicians to conduct medical examinations and review radiology films and other diagnostic tests of employees. Physicians also provide such services at the request of other third parties. These examinations are commonly called independent medical examinations. Increasingly, patients are bringing and prevailing in medical malpractice lawsuits against physicians who conduct independent medical examinations, in part because of physicians' misconceptions of their legal duties in this context. Despite the absence of a traditional physician–patient relationship, physicians who conduct independent medical examinations still owe various legal duties to the examinee patient, although the precise scope of those duties is a source of constant debate and change. Since 2001 alone, 4 state supreme courts have exercised their discretion to hear cases on this issue, bearing witness to its medical, legal, and social significance. Given the current medical malpractice climate, it is imperative that physicians understand the potential liability inherent in conducting independent medical examinations. This article summarizes controlling law, clarifying an otherwise muddied legal picture. It also offers practical suggestions for limiting physician liability in independent medical examinations.

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References

1.
Dyer v. Trachtman, 679 N.W.2d 311 (Mich. 2004).
2.
Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004).
3.
Martinez v. Lewis, 969 P.2d 213 (Colo. 1998).
4.
Dugan v. Mobile Medical Testing Services, Inc., 830 A.2d 752 (Conn. 2003).
5.
Webb v. T.D., 951 P.2d 1008 (Mont. 1997).
6.
Reed v. Bojarski, 764 A.2d 433 (N.J. 2001).
7.
See, e.g., Burgess v. Superior Court, 2 Cal. 4th 1064, 1077 (Cal. 1992).
8.
Council on Ethical and Judicial Affairs, American Medical Association. Code of Medical Ethics: Current Opinions, Opinion 10.03, Patient-Physician Relationship in the Context of Work-Related and Independent Medical Examinations. 2004-2005 edition. Chicago: American Medical Assoc; 2004:303-4.
9.
Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993).
10.
Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) and regulations promulgated at 45 CFR Part 164.
11.
45 CFR § 164.508(b)(4)(iii).

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Bruce G., Borkosky, psychologist 10 February 2012
Re:Liability for IME doc's

What the authors are referring to is an expanding base of case law that opines 'if you add giving medical advice or treatment to the evaluation, then all those responsibilities to the patient (that you did not have when it was merely an evaluative relationship) come flying back in. I believe that's what they mean here - affirmative, as in, positive - giving of advice or treatment (as opposed to withhold advice or treatment). The case is numerous, and it is difficult to state with particularity what does, or does not, constitute treatment, because it is extremely dependent on the facts of each case. The authors are merely warning you that, if you start down that path, you can easily wind up in a treating relationship, with the concomitant responsibilities to the patient. Bruce Borkosky

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Information & Authors

Information

Published In

cover image Annals of Internal Medicine
Annals of Internal Medicine
Volume 142Number 12_Part_121 June 2005
Pages: 974 - 978

History

Published online: 21 June 2005
Published in issue: 21 June 2005

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Authors

Affiliations

Ken Baum, MD, JD
From Wiggin and Dana LLP, New Haven, Connecticut.
Disclosures: None disclosed.
Corresponding Author: Ken Baum, MD, JD, Wiggin and Dana LLP, 265 Church Street, New Haven, CT 06510; e-mail, [email protected].

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Ken Baum. Independent Medical Examinations: An Expanding Source of Physician Liability. Ann Intern Med.2005;142:974-978. [Epub 21 June 2005]. doi:10.7326/0003-4819-142-12_Part_1-200506210-00007

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