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Rick Shapiro
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Doctors Handling Independent Medical Exams May Be Sued For Wrongly Concluding No Medical Care Required

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Doctors conducting medical evaluations or exams for medical-legal or forensic purposes are usually careful to place in the consent form that they are not providing actual medical care. These doctors do not want to be saddled with the patient-doctor relationship issues under state medical-legal requirements. However, in an interesting case, the Arizona Court of Appeals has ruled that an Independent Medical Exam doctor, who saw a worker at the request of a workers’ compensation carrier still had responsibility to the man once he issued a written report stating that the man did not need any further medical care and that he needed no work restrictions whatsoever.

Based on the medical examination, the man’s employer terminated his workers’ compensation benefits entirely and presumably the right to medical coverage. However, the man’s condition got worse and he actually suffered what is called spinal cord death and he developed a condition that caused, chronic pain. He took drugs for the chronic pain and other medications and then died of an accidental overdose.

In a suit by his family relating to his wrongful death, a jury in Arizona found the doctor to be 28.5 percent responsible/negligent in relation to the man’s wrongful death.

Attorneys for the doctor appealed in the case called Ritchie v. Krasner, Arizona Court of Appeals, April 21, 2009. As part of the Appeals Court opinion the court stated as follows:

“We…cannot envision a public benefit in encouraging a doctor with specific individualized knowledge not to investigate the symptoms of a cervical [neck] spine injury. We recognize the very real concern that imposing a duty on [the IME doctor] to practice reasonable care under the circumstances might create a chilling effect within the IME community…[H]owever, ethical standards govern physicians, and they likely limit the threatened flood of litigation to a trickle…we do not hold that every IME physician has a duty of care in every situation. In this case, [the IME doctor] was hired to determine the extent of the…work-related injury and make treatment recommendations. By agreeing to do so, he assumed a duty to conform to the legal standard of reasonable conduct in light of the apparent risk. Therefore we hold that the trial court correctly held that [the IME doctor] owed a duty of reasonable care….’”

In Virginia and Carolina personal injury litigation, just like anywhere else in the U.S.A.,these medical evaluations (we call them “defense” medical exams) and evaluations are requested by insurance companies and defendants in personal injury cases. Unfortunately, there are orthopedic doctors and others that engage in a business of earning money from medical exams on a daily and weekly basis to the point where it becomes the primary income generator for that doctor’s practice. Also, some of the reports that are generated by these litigation savvy positions becomes a major income source and the reports tend to look the same almost irrespective of the symptoms. This is particularly noticeable where a patient has a serious whiplash or soft tissue back or neck injury without MRI findings. Some of the examining doctors tend to believe that the patient never has continuing pain and the reports look like they are pumped out of a cookie cutter, with very few changes to the name and the circumstances because the conclusions seem to be the same over and over.

Where the scope of the medical examination is merely a request for an opinion on whether the patient has a permanent injury, or whether the patient suffered permanent or temporary injuries, it does not appear that the medical doctor conducting the exam would have liability for an opinion.

The Arizona Court was careful to point out that the reason the doctor was liable was because he was being asked on whether any further medical care was required and what were the recommendations for medical care. This is clearly beyond an opinion to state to a reasonable degree of medical probability of whether a patient suffered an injury from a certain cause, and also is well beyond an opinion on what the current snapshot or picture of the patient is at the time of the exam.

There is a growing body of law pertaining to such Medical Examinations (what injury lawyers call defense requested medical examinations) in other areas such as allowing a spouse or friend to observe an Independent Medical Exam/defense medical exam occur. Sometimes injury lawyers think that these defense medical doctors overstate the length of the exam and the nature of the exam so independent witnesses are now usually allowed, if requested. Even video taping is now allowed by some states, or by motion approved by a court.

My take: it may be a good thing to let defense medical doctors know they have some limited responsibility for the opinions they render. Lets be sure that such doctors recognize that their opinions may have consequences.

About the Editors: Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia (VA), near the NE North Carolina (NC) border and handles car,truck,railroad, and medical negligence cases and more. Our lawyers proudly edit the Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono public information service. Lawyers licensed in: VA, NC, SC, WV, DC, KY.

RNS