Tonight's Weird (but true) legal case analysis asks whether a doctor who is performing an independent medical examination truly the patient's doctor? This was the question recently asked by the New York Court of Appeals in Bazakos v Lewis.
In Bazakos, a litigant who had brought a suit related to an automobile accident visited a medical doctor who was hired by the defendant in the lawsuit conduct an "independent medical examination" (IME). During the IME, the doctor injured Bazakos by taking Bazakos' head in his hands and forcefully rotating it while simultaneously pulling.
As a way of background, under NY law a claim for ordinary negligence is governed by a three year statute of limitations. By comparison, a claim of medical malpractice is governed by a two year and six months statute of limitations.
In the Bazakos matter, Bazakos filed suit against the doctor who performed the IME, two years and eleven months after the IME. Following service of the lawsuit, the IME doctor moved to dismiss and the trial court granted the motion, ruling that the claim was governed by the two year and six months statute of limitations applicable to medical malpractice claims. On appeal, the Appellate Division reversed, finding that no physician patient relationship existed between Bazakos and the IME doctor and that the claim was one for ordinary negligence with its three year limitations period. As summarized by the Court of Appeals in its decision, Bazakos argued:
In a 4-3 decision, the Court of Appeals reversed, finding that there was a physician patient relationship. In explaining its position, the majority explained that:
If you would like to see the opinion, it is available free of charge at http://www.nycourts.gov/reporter/3dseries/2009/2009_05199.htm .
In Bazakos, a litigant who had brought a suit related to an automobile accident visited a medical doctor who was hired by the defendant in the lawsuit conduct an "independent medical examination" (IME). During the IME, the doctor injured Bazakos by taking Bazakos' head in his hands and forcefully rotating it while simultaneously pulling.
As a way of background, under NY law a claim for ordinary negligence is governed by a three year statute of limitations. By comparison, a claim of medical malpractice is governed by a two year and six months statute of limitations.
In the Bazakos matter, Bazakos filed suit against the doctor who performed the IME, two years and eleven months after the IME. Following service of the lawsuit, the IME doctor moved to dismiss and the trial court granted the motion, ruling that the claim was governed by the two year and six months statute of limitations applicable to medical malpractice claims. On appeal, the Appellate Division reversed, finding that no physician patient relationship existed between Bazakos and the IME doctor and that the claim was one for ordinary negligence with its three year limitations period. As summarized by the Court of Appeals in its decision, Bazakos argued:
medical malpractice is a breach of a doctor's duty to provide his or her patient with medical care meeting a certain standard; that Lewis was not Bazakos's doctor, and Bazakos was not Lewis's patient; and that therefore the negligence of which Lewis is accused cannot be medical malpractice. He points out that the relationship between the doctor and the person the doctor examines at an IME is essentially adversarial; the person examined is required by law to submit to a procedure performed for the benefit of a party seeking to defeat that person's legal claim.
In a 4-3 decision, the Court of Appeals reversed, finding that there was a physician patient relationship. In explaining its position, the majority explained that:
In his sharply worded dissent, new Chief Judge Lippman took issue with the majority opinion, explaining that there was no basis to afford the IME doctor the benefit of the shorter limitations period as his:[T]he 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 ...
Bazakos's claim here is that Lewis breached his duty "to perform the examination in a manner not to cause physical harm to the examinee." That is a claim for medical malpractice, and it is governed by the 2 year, 6 month statute of limitations. Therefore, Bazakos's lawsuit was not timely.
duty towards his examinee was no more extensive than that of refraining from harming him during the exam; he had no medical duty competently to diagnose, inform or, indeed, to treat the subject of his exam. Such an extraordinarily limited scope of professional responsibility stands in sharp contrast to the enormous risks and obligations routinely encountered by physicians providing actual patient care and treatment.Judge Lippman then took issue with the notion of the duty imposed by the majority and the creation of a relationship, explaining that:
The very limited duty arising in this situation bears not the slightest resemblance to the very much more comprehensive set of responsibilities devolving upon a practitioner engaged in treatment — the defining set of responsibilities contemplated by the Hippocratic injunction to do no harm. The duty here implicated does not arise from what is reasonably susceptible of characterization as a doctor-patient relationship, i.e. a treatment relationship; it is simply an instance of the general obligation, frequently enforceable in tort, to refrain from causing foreseeable harm. That is ordinary negligence. It is today denominated "medical malpractice" only by dint of an exercise in judicial artifice untethered to any law or to the actual nature of the transaction known euphemistically as an "independent" medical examination. 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.
If you would like to see the opinion, it is available free of charge at http://www.nycourts.gov/reporter/3dseries/2009/2009_05199.htm .
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