Physician-patient relationships may blur during independent medical examinations

Surgeons performing patient evaluations for third parties should be aware that a physician-patient relationship may be inadvertently established.

Co-Editors’ note: Guest authors who want to express their perspective on matters that concern medicolegal issues are always welcome. This month, we present an article by Jeffery A. Shane, MD, JD, that illustrates the circumstances under which a physician-patient relationship can be established during the course of an independent medical examination.

Usually, a physician employed to examine a patient on behalf of a third party, such as an insurance company or attorney, does not establish a physician-patient relationship. However, there are times when a limited duty to the patient may exist and therefore present a potential exposure to liability.

Duty of care

Establishment of a “duty of care” is a necessary predicate for a disgruntled patient to file a lawsuit against a physician alleging medical malpractice. The basic premise of a medical malpractice claim is that a breach of duty occurred, and that such breach caused an injury. A duty of care toward the patient is the easiest element to establish; most courts will assume such a duty exists as long as the plaintiff can establish that a physician-patient relationship existed.

There are circumstances in which a physician may be retained by third parties for the limited purpose of examining a patient and rendering an opinion about a specific aspect of the patient’s condition — the nature of a claimed disability. Such patient-physician interactions are for a limited purpose, and the report of these evaluations is submitted to the employing entity.

Lawrence H. Brenner

B. Sonny Bal

In such situations, because there is no intent to treat the patient, and both the physician and the examinee understand that the physician is employed exclusively for conducting the required limited examination, there is no physician-patient relationship established. There are, however, exceptions to this general rule that can creep in under a number of situations. For example: the physician conducting an independent medical examination (IME) may advise a course of treatment to the party being examined; the patient may be injured during the examination; or the physician might fail to discover or inform the patient about a serious condition discovered during the examination. In these scenarios, some courts have found that a limited duty of care exists and have allowed allegations of physician malpractice to proceed to trial.

Case Examples:

After injuring his right shoulder at work, a man consulted an orthopedic surgeon who diagnosed a ruptured biceps tendon and recommended surgical repair. His employer’s workers’ compensation carrier disputed that finding and required him to undergo an IME. Based on the IME conducted by another orthopedic surgeon, it was felt that surgical intervention was not necessary and that physical therapy (PT) should be pursued instead. Accordingly, the workers’ compensation carrier refused to approve surgery and the man underwent supervised PT.

When PT proved ineffective, the man ultimately underwent surgery, but the result was suboptimal and he alleged that the lapse of time since the injury was to blame for the poor outcome. He commenced a medical malpractice action, alleging that the IME physician had advised him during the examination that surgery was not indicated for his condition, and that physical therapy would be the appropriate treatment. He further alleged that he relied upon this incorrect advice to his detriment, such that the delay in having shoulder surgery caused him to suffer an 80% loss of use of his arm.

In a legal action reflecting the above facts, a court found that while an IME performed at the request of a third party does not ordinarily give rise to a physician-patient relationship, such a relationship may be implied where the IME physician affirmatively advises the patient of a course of treatment. With the necessary element of duty thus established, a jury could reasonably consider the remaining issues of whether the physician’s advice was negligent and whether the examinee’s reliance was foreseeable and detrimental.

In another case, an IME physician referred an examinee for additional testing and a work-hardening program, which allegedly aggravated the examinee’s condition. The examinee alleged that the tests and exercises ordered as part of the IME evaluation caused harm. The examinee argued that the physician was negligent since he knew, or should have known, the risk of performing the tests and work-hardening based on the information available.

With these facts, a court found that a physician may have liability to an examinee for negligence or professional malpractice for injuries incurred during an IME examination. The ruling held that a court should take into account the nature of the services to be performed, the circumstances surrounding the request for service, and whether the physician obtained information during the performance of the services which would suggest to the physician a need to proceed with care in order to avoid injury to the examinee.

Another case involved an employee who was required to have an annual employment physical examination, paid for by the employer. During that examination, the physician allegedly failed to diagnose a serious underlying condition, namely lung cancer. After the patient died, his widow and child sued.

In this scenario, a court noted that employers often require that employees subject their bodies to inspection in order to obtain or maintain employment. It found that in placing oneself in the hands of a person skilled in a medical profession, albeit at the request of one’s employer, one justifiably has the reasonable expectation that the expert will warn of , “Any incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization.” Accordingly, the court held that the examining physician owed a duty toward the examined party; and whether or not the physician was indeed negligent in failing to diagnose lung cancer was appropriate for the jury to consider.

The counter argument

Other courts have determined that no physician-patient relationship arises from an examination on behalf of an adversary in the litigation context. For example, a man was injured when the vehicle that he was driving was hit from the rear by another vehicle. After he filed a lawsuit, he was required to appear at the office of an orthopedic surgeon for an IME. The plaintiff alleged that during the IME, the orthopedic surgeon took his head in his hands and forcefully rotated it while simultaneously pulling causing permanent injury to the neck. He sued the physician on the grounds of ordinary negligence, instead of medical malpractice.

The surgeon argued that while the examinee may have alleged that the lawsuit was one to recover damages for simple negligence, and was filed within the applicable statute of limitations, the action was, in actuality, to recover damages for medical malpractice which has a shorter statute of limitations and which had expired. The case turned on the nature of the underlying claim, since a lawsuit for medical malpractice would have been barred by the applicable statute of limitations.

The court examined the establishment of the physician-patient relationship and concluded that the surgeon’s rendering of an IME for his client, the insurance carrier, which allegedly resulted in injury to the plaintiff, with whom he had no physician-patient relationship, was simple negligence. It concluded that a physician-patient relationship therefore did not exist; the medical examination was conducted solely for the purpose of rendering an evaluation as a litigation support service for an insurer.

The lack of a physician-patient relationship worked against the physician in this case as the plaintiff was able to maintain an action in simple negligence, as opposed to medical malpractice.

As these case examples illustrate, surgeons performing evaluations of patients for limited purposes on behalf of other parties should be alert that a physician-patient relationship may be inadvertently established.

For more information:

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C.
• Jeffery A. Shane, MD, JD, is a member of the ELM Exchange Faculty. ELM provides online risk management and patient safety education for physicians and other health care providers. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.