Generally speaking, and as for example outlined in the Independent Medical Examiner – IME – Sevices Standards, (in Victoria) a doctor hired to examine a patient/injured worker on behalf of a workcover insurance company ((or employer), does not establish a (standard) doctor-patient relationship. However, we believe that there are times when at the very least, a limited duty to the injured worker (patient) may well exist in some circumstances! And that the IME in question could potentially be sued for liability (i.e. malpractice)!
Yesterday a comment was posted by @Deluded which ended up in our spam folder (because of the use of external link which prompts us to review such a comment). Deluded shared a very interesting write-up regarding the actual relationship between an IME and an injured worker:
i was surfing thru my friend google and came across this website it is american but does give food for thought especially where we need to purge those jerks that right bs IME reports . I came across this question and answer on this site
“I see that most, if not all IME Physicians fall in line with the insurance companies as far as the evaluation goes, But if the IME physicians have medical evidence in front of them such as Cat scans, MRI’S, X-rays along with other prior medical records from general physicians that shows no prior injuries and the IME Physicians still give a inept report/ opinion against the person receiving the IME does this put the physicians in a liability stance for a inept report because they are using there medical opinion that will effect future medical care of the person that was injured.”
March 28, 2012 at 4:26 pm
” Usually, no. It is generally understood that IME doctors do not establish a doctor-patient relationship with the people they evaluate (most will have you sign a form stating this). However, there is one case from Arizona of which I am aware in which an IME doctor was held liable for medical malpractice for an IME he performed in a workers compensation case. The appellate court, upholding a large judgment against the IME doctor, held in part that because the doctor had agreed to evaluate the claimant and make treatment recommendations, he could be liable despite the claimant signing a disclaimer form stating that no physician-patient relationship was established. This appellate court ruling was from 2009, and according to other websites it was appealed to the Arizona Supreme Court. My own research into that appeal showed no disposition by the Arizona Supreme Court, and the case is not currently pending, so I can only assume that it settled.”
This Arizona case appears to be an anomaly, so don’t get your hopes up about a flood of lawsuits against IME doctors. It is good to know, though, that at least some judges are willing to entertain the thought that an IME doctor who causes your treatment to be cut off could be liable for medical malpractice when his medical evaluation falls below the applicable standard of care.
and just wondered if we could find a lawyer to test the murky waters re IME’s and their non patient relationship if we could set a precedence where that lying BS dodgy IME stopped treatment and in doing so the injury has deteriorated where that person now has PI that if the treatment/surgery had not been stopped by the dodgy IME’s say so the person would not have the debilitating impairment that they have now thru lack of treatment
Doctor- Patient Relationship between IME and injured worker
According to, for example, the Victorian IME Services Standards
“1.1 The relationship between an independent medical examiner (IME) and a person undergoing an independent medical examination differs from that in a usual [practitioner] doctor/patient relationship. Notwithstanding this difference, it is expected that recognised professional standards and the applicable law will be adhered to at all times“.
Also see the AMA’s Ethical Guidelines for Conducting Independent Medical Assessments 2010 and the RANZCP 2015 Developing reports and conducting independent medical examinations in medico-legal settings.
The IME and Duty of care: no duty of care or very limited
During an IME (Independent Medical Examination by a doctor chosen by the insurer), vulnerable and injured or ill workcover victims are no longer ‘patients’ but are now ‘clients’ to whom the IME doctor essentially owes no ‘duty of care’. Far too often the IME doctor provides an unqualified (outside field of expertise), biased or superficial assessment that becomes part of an injured workers’ medical (and legal) file. Workcover benefits are also often discontinued based on a flawed IME report and it can take years to have treatment and benefits reinstated.
According to the literature and case law, one needs to establish of a “duty of care” for a [disgruntled/done over] patient to file a lawsuit against a doctor alleging medical malpractice.
The basic reasoning of a medical malpractice claim is that a breach of duty occurred, and that such breach caused an injury.
A duty of care by a (normal) doctor toward the patient is -according to lawyers- the easiest part to establish; and most courts will assume such a duty of care exists as long as the plaintiff (the patient) can establish that a doctor-patient relationship existed.
In the case of workers comp, doctors (IMEs) may be retained by the insurance company for the limited purpose of examining an injured/ill worker and rendering an opinion about a specific aspect of the injured worker’s condition — i.e. the nature of a claimed disability. Such injured worker (the patient or client)-doctor interactions are for a limited purpose, and the report of these evaluations is submitted to the employing entity, the workcover insurer (and/or employer).
In such situations, because there is no intent to treat the patient (the injured/ill worker), and both the doctor and the injured worker understand that the doctor is employed exclusively for conducting the required limited so called independent examination, there is no doctor-patient relationship established.
As @Deluded stated, there are, however, exceptions to this general rule that can creep in under a number of situations. Definitely in America, and why not here in Australia? For example: the doctor (IME) conducting an independent medical examination (IME) may advise a particular treatment to the injured/ill worker being examined; the injured worker may also be injured during the examination; or the IME doctor might fail to discover or inform the injured worker 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 doctor malpractice to proceed to trial.
Case Examples (America)
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 workcover insurer disputed that finding and required him to undergo an IME. Based on the IME conducted by another (general) orthopedic surgeon, it was believed that surgical intervention was not necessary and that physio should be tried instead. As such, the workcover refused to approve surgery and the injured workerr underwent (limited) physio.
When the IMEs recommended proved ineffective, the injured worker ultimately underwent surgery, but the result was poor and he alleged that the lapse of time since the injury was to blame for this poor outcome. The injured worker started a medical malpractice claim, alleging that the IME doctor had advised him during the IME examination that surgery was not indicated for his condition, and that physio 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.
The Court found that while an IME performed at the request of a third party does not ordinarily give rise to a doctor-patient relationship, such a relationship may be implied where the IME doctor affirmatively advises the patient (injured worker) of a course of treatment. With the necessary element of duty thus established, a jury could reasonably consider the remaining issues of whether the doctor’s advice was negligent and whether the injured worker’s reliance was foreseeable and detrimental.
In another case, an IME doctor referred an injured worker for additional testing and a work-hardening program, which allegedly aggravated the injured worker’s condition. The injured worker alleged that the tests and exercises ordered as part of the IME evaluation caused harm. The injured worker argued that the IME doctor 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, an American court found that a doctor may have liability to an injured worker 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 doctor obtained information during the performance of the services which would suggest to the doctor a need to proceed with care in order to avoid injury to the injured worker.
The counter arguments
Other courts have determined that no doctor-patient relationship arises from an IME 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 doctor on the grounds of ordinary negligence, instead of medical malpractice.
The surgeon argued that while the injured worker 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 doctor-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 injured worker, with whom he had no doctor-patient relationship, was simple negligence. It concluded that a doctor-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 doctor-patient relationship worked against the doctor in this case as the plaintiff was able to maintain an action in simple negligence, as opposed to medical malpractice.
It would be great to get a legal opinion on this here in Australia!
[Article dictated by WCV and transcribed on her behalf]
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