Part and parcel of many types of claims for bodily injuries is the medical examination conducted by a physician designated by an insurance company; this however can be complicated by the physician-patient relationship. This can occur in contexts including a personal injury lawsuit, a claim for motor vehicle no-fault benefits, a disability claim or a workers compensation claim. Once in a while one of our clients complains that they were injured by the insurance company doctor, although no one, as far as we know, has gone so far as to try to sue the doctor. But if a client did sue, would it be considered an action for medical malpractice or for negligence?
It made a difference in Bazakos v. Lewis, — N.E.2d—, 2009 WL 1765980 (N.Y., 2009), a 4-3 split Court of Appeals decision dated June 24, 2009, because the suit was commenced after the 2 -year time limit for medical malpractice actions but before expiration of the 3-year limitation for negligence.
In Bazakos, a chiropractor injured in a motor vehicle accident sued a doctor who had examined him for the defendant. Bazakos alleged that the defendant injured him during the examination when he took plaintiff’s head in his hands and forcefully rotated it while simultaneously pulling. The Appellate Division, Second Department majority concluded that, because physician-patient relationship the doctor the person being examined, the action was not for medical malpractice.
The Appellate Division granted Lewis leave to appeal, certifying the question of whether its order was properly made. The Court of Appeals answered the question in the negative and reversed. The Court of Appeals focused on their perception that the procedure the doctor was performing required the doctor’s specialized skill, and as a defendant in a medical malpractice case, was being called upon to defend his performance of professional duties.
The act on which Bazakos’s lawsuit is based – Lewis’s manipulation of a body part of a person who came to his office for a physical examination-constitutes medical treatment by a licensed physician, and the negligent performance of that act is not ordinary negligence, but a prototypical act of medical malpractice. The Court held that there was doctor-patient relationship may fairly be called a limited physician-patient relationship but it was a limited relationship that imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.
The dissent distinguished between medical techniques the doctor employed in examining plaintiff and medical treatment, noting that no medical treatment was intended or in fact provided. The dissent aptly observed, The exam was conducted simply as a disclosure device in litigation and, indeed, one whose benefit inured not to the examinee but to the examinee’s adversary. It was good to hear the dissent so accurately attack the appropriateness of the word independent as it appears in the phrase independent medical examination.
Chief Judge Jonathan Lippman wrote for the dissent: These exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all. Most interestingly, the majority opinion unabashedly used the term “IME” (the acronym for “independent medical examination”) in its decision, signaling, seemingly deliberately, that it had no problem with the “independent” moniker.
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