NY's Highest Court Rules That Independent Medical Examination May Give Rise to Claim of Medical Malpractice
In a decision handed down on June 24, 2009, New York's highest court, the Court of Appeals, ruled that a claim of "medical malpractice", and not ordinary negligence, may arise from an injury inflicted upon a person undergoing an Independent Medical Examination (IME). In New York, medical malpractice is governed by a shorter statute of limitation - 2 years, 6 months - while a claim of ordinary negligence has a 3 year statute of limitation. The decision is Bazakos v. Lewis, NY Slip Op. 112 (2009).
An IME is a discovery tool often used by defendants in personal injury actions which requires a plaintiff to undergo a medical examination by a physician designated by the defendant. See NY CPLR 3121. In Bazakos, the plaintiff had a previous pending lawsuit arising out of an automobile accident and during that suit was required to undergo an IME by Dr. Philip Lewis - a doctor designated by the defendant. Bazakos claimed that Dr. Lewis, during the IME, "took [Bazakos'] head in his hands and forcefully rotated it while simultaneously pulling," allegedly causing injury to Bazakos. Two years and 11 months after the IME, Bazakos sued Dr. Lewis for negligence, and Dr. Lewis moved to dismiss the action as untimely under the medical malpractice statute of limitations. The trial court dismissed the action; the Appellate Division later reversed the trial court's ruling, and held that because the doctor performing an IME and the person undergoing it do not have a physician-patient relationship, the action was not "for medical ... malpractice" and was therefore governed by the three year statute applicable to personal injury actions generally. The Appellate Division granted Dr. Lewis leave to appeal and certified the question to the Court of Appeals whether the Appellate Division's ruling was properly made.
Reversing the Appellate Division, the Court of Appeals held that "the relationship between a doctor performing an IME and the person he is examining may fairly be called a 'limited physician-patient relationship' -- indeed, this language is used in an American Medical Association opinion describing the ethical responsibilities of a doctor performing an IME (Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions, Opinion 10.03)." Therefore, the Court held, the claim that a doctor breached his duty of care while performing an IME "is a claim for medical malpractice, and it is governed by the 2 year, 6 month statute of limitations."
The Bazakos decision is consistent with a decision rendered two months ago by the Arizona Court of Appeals, Ritchie v. Krasner, in which the Court held that an IME doctor in a workers compensation matter owed a duty to exercise reasonable medical care when assessing the condition of an injured worker.
An IME is a discovery tool often used by defendants in personal injury actions which requires a plaintiff to undergo a medical examination by a physician designated by the defendant. See NY CPLR 3121. In Bazakos, the plaintiff had a previous pending lawsuit arising out of an automobile accident and during that suit was required to undergo an IME by Dr. Philip Lewis - a doctor designated by the defendant. Bazakos claimed that Dr. Lewis, during the IME, "took [Bazakos'] head in his hands and forcefully rotated it while simultaneously pulling," allegedly causing injury to Bazakos. Two years and 11 months after the IME, Bazakos sued Dr. Lewis for negligence, and Dr. Lewis moved to dismiss the action as untimely under the medical malpractice statute of limitations. The trial court dismissed the action; the Appellate Division later reversed the trial court's ruling, and held that because the doctor performing an IME and the person undergoing it do not have a physician-patient relationship, the action was not "for medical ... malpractice" and was therefore governed by the three year statute applicable to personal injury actions generally. The Appellate Division granted Dr. Lewis leave to appeal and certified the question to the Court of Appeals whether the Appellate Division's ruling was properly made.
Reversing the Appellate Division, the Court of Appeals held that "the relationship between a doctor performing an IME and the person he is examining may fairly be called a 'limited physician-patient relationship' -- indeed, this language is used in an American Medical Association opinion describing the ethical responsibilities of a doctor performing an IME (Council on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions, Opinion 10.03)." Therefore, the Court held, the claim that a doctor breached his duty of care while performing an IME "is a claim for medical malpractice, and it is governed by the 2 year, 6 month statute of limitations."
The Bazakos decision is consistent with a decision rendered two months ago by the Arizona Court of Appeals, Ritchie v. Krasner, in which the Court held that an IME doctor in a workers compensation matter owed a duty to exercise reasonable medical care when assessing the condition of an injured worker.
