Doctor liable despite no patient relationship
■ A column analyzing the impact of recent court decisions on physicians
By Amy Lynn Sorrel — covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted Aug. 10, 2009.
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Physicians performing independent medical examinations on behalf of employers or insurance carriers typically are not expected to establish a traditional patient-doctor relationship with the examinee. In fact, consent forms or other agreements often make clear that bond does not exist, and the doctor is not providing actual medical care.
Nevertheless, an Arizona appeals court recently found that a doctor doing one such exam on behalf of a workers' compensation carrier could be held partially liable for the death of a man he evaluated. The doctor is asking the state Supreme Court to hear the case.
The case began in 2000, when Jeremy Ritchie injured his back while he was at work. His employer's workers' compensation carrier retained Scott A. Krasner, MD, to perform an independent medical evaluation of Ritchie's condition, including a diagnosis, prognosis and recommendations on treatment.
Before Dr. Krasner's evaluation, Ritchie signed a limited liability agreement stating: "It is very important that [Ritchie] realize that no doctor-patient relationship exists between you and Dr. Krasner. Because of this, the results of this evaluation will not be given to you or to anyone that you may request to receive them. This is done to insure that all findings will be neutral, and that the evaluators are completely independent and not involved in your disability claim."
In its request to Dr. Krasner, the workers' compensation carrier described Ritchie's injury as a cervical and lumbar strain, based on a diagnosis from another physician Ritchie had seen earlier. After reviewing Ritchie's medical records and ordering an MRI, Dr. Krasner concluded in his report that Ritchie had recovered and that his condition did not warrant additional medical care or work restrictions. As a result, the workers' compensation carrier terminated Ritchie's benefits, and he did not seek further treatment.
Ritchie's condition later deteriorated, and he ultimately was diagnosed with a cervical spinal cord compression for which he underwent surgery. He was prescribed various medications, including narcotics, for pain and died as the result of an accidental overdose in April 2004.
Ritchie's family sued Dr. Krasner and other doctors and health care professionals involved in his care for failing to diagnose him properly and for wrongful death. A jury ultimately awarded $5 million to the Ritchies and found Dr. Krasner 28.5% at fault.
Dr. Krasner appealed, saying he had no duty to Ritchie because no doctor-patient relationship existed. But in an April 21 decision, the Arizona Court of Appeals said that standard applied narrowly, "only when the doctor has no intent to treat, care for or otherwise benefit the employee."
Judges agreed with Dr. Krasner that an independent medical examiner does not have a responsibility to perform an evaluation so thorough as to discover every condition that could be harmful to the patient's health, when the condition that posed a risk was not uncovered during the exam. Nevertheless, the court said, an independent medical examiner still has a duty to follow a reasonable standard of care.
Judges said they "cannot envision a public benefit in encouraging a doctor with specific individualized knowledge not to investigate the symptoms of a cervical spine injury. We recognize the very real concern that imposing a duty on [Dr.] Krasner to practice reasonable care under the circumstances might create a chilling effect within the IME community. ... However, ethical standards govern physicians, and they likely limit the threatened flood of litigation to a trickle."
The court emphasized that it was not holding that every independent medical examiner has a duty of care in every situation. In this case, however, "Dr. Krasner was hired to determine the extent of Jeremy's 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."
Against Dr. Krasner's objections, the appeals court upheld a trial judge's decision to prevent the jury from seeing the limited liability agreement Ritchie signed, finding it irrelevant. "Although the agreement states that [Ritchie] does not share a formal or traditional doctor-patient relationship with [Dr.] Krasner, this does not free [Dr.] Krasner from a duty of care," the court said.
Dr. Krasner is appealing the decision to the Arizona Supreme Court. His attorney declined requests for comment due to the pending litigation. The Arizona Medical Assn. is monitoring the case.
American Medical Association ethical policy states that independent medical examiners are responsible for administering an objective medical evaluation, but not for monitoring patients' health over time, treating patients or fulfilling many other duties traditionally held by physicians. While a limited patient-physician relationship should be considered to exist, the policy states that independently contracted doctors have some of the same obligations as they would in other contexts to:
- Perform objective examinations that are not influenced by the preferences of the patient-employee, employer or insurance company when making a diagnosis.
- Maintain patient confidentiality.
- Inform the patient about the terms of agreement with the third party.
- Notify the patient about important health information or abnormalities discovered during the course of the examination.
Expansion of duty?
Some experts said the appeals court decision represents an expansion of an IME's legal duties and could have a chilling effect on their participation in certain evaluations. Still, Richard N. Shapiro, a personal injury lawyer based in Virginia Beach, Va., noted that the court was careful to limit its opinion.
Under the decision, independently contracted doctors are unlikely to face liability for rendering an opinion on whether a certain incident, such as an auto crash, could have been responsible for a person's alleged injuries and his or her status, said Shapiro, of Shapiro, Cooper Lewis & Appleton PC.
"Those things aren't going to change the scope of the doctor's responsibilities," he said. "But the precedent of this case is, once the doctor goes beyond to give an opinion as to future medical care, they are going to have some responsibility if there's an adverse result."
In that respect, the ruling could deter doctors from offering such recommendations, which typically arise in determinations of workers' compensation or Social Security benefits, Shapiro said.
Peter J. Hoffman, a medical liability defense lawyer in Philadelphia, said it's not unusual for courts to find a legal duty beyond the formal doctor-patient relationship. For example, doctors who read and interpret x-rays or drug screenings for people they typically don't see have been held liable for misinterpreting test results.
"The difference in those cases is, when you go in for the screening, you expect it to be read correctly, and if there's anything wrong, that they are going to tell you," said Hoffman of Eckert Seamans Cherin & Mellott LLC. "But here [with an independent exam], it's not being done for your benefit. It's being done for someone else," so there typically would not be a legal duty to the patient.
But Ritchie's attorney, Michael J. Valder, said that in this case, the exam was conducted with the expectation that it would aid in Ritchie's diagnosis and treatment and determine whether he was entitled to benefits. In those situations, "the court made it clear, a doctor has the same duty dealing with any patient, whether or not you call it an IME or a doctor-patient relationship. If you are examining somebody, maybe performing some tests, and commenting on the medical care, the duty is to be reasonable under the circumstances."
Valder also noted that Ritchie and the workers' compensation carrier relied on Dr. Krasner's recommendation in their respective decisions to forgo further care and benefits -- a factor that could play a role in how future courts determine liability in such cases.
But Hoffman noted that plaintiffs still would have to prove that a doctor was negligent and that the examinee was harmed.
As for the use of a written agreement, despite the court's finding, Shapiro still recommended it to spell out clearly the nature of the doctor's role and the exam. But doctors "should be mindful of what is being asked of them and be careful in providing that opinion."
Valder said such agreements still do not shield doctors from liability. "You can't contract away your duty."
Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.