IME DOCTOR LIABILITY

          Over the years I have had clients ask me if there is any liability to IME (independent medical examination ) doctors for the opinions those doctors have offered in that context. While I had never thought so previously, there is a recent opinion from the Arizona Court of Appeals that now offers the view that such liability does exist. In the April 21, 2009 decision in Richie v. Krasner, the court held that when a doctor, in the context of performing an IME at the behest of the worker’s comp insurance carrier, reviewed patient records, conducted an exam and rendered a report which was relied upon by the carrier and the worker, he assumed a duty to conform to the legal standard of care for one with his skill, training and knowledge. The issue of whether he breached that duty is a question for the jury.

          The court found this duty to exist even though the doctor had a written limited liability agreement that he showed the worker before the examination occurred. The court found that the fact that the agreement made clear to the worker that there was no doctor/patient relationship did not obviate the doctor’s duty of care. The doctor also argued that the fact that the worker died four years after the exam from an accidental drug overdose of medication prescribed by another doctor acted as an intervening cause, and superseded  any liability that he may have had. While the court was willing to agree that the prescription of the medication four years later was an intervening cause, but found that whether it was sufficient to relieve the doctor of liability regarding its foreseeability.was a jury question

          Based upon the Arizona Court of Appeals’ analysis, the jury verdict was upheld. The jury had found that this IME doctor’s misdiagnosis was partially the cause of the worker’s death, either because the worker relied upon the IME doctor’s report or because his worker’s comp carrier relied upon the report, causing it to terminate the worker’s comp coverage for his claim. Given that the court found the jury could have found that the worker’s physical deterioration and his reliance on medication were foreseeable. The jury awarded the worker’s estate $5,000,000, finding the IME doctor 28.5% liable for the death with the other doctor defendants responsible for the remaining percentage of liability. While the Arizona decision is not controlling in New Hampshire, it may give the IME doctor community some pause going forward.