Mr. F, a divorced, 53-year-old construction worker, hurt his back while lifting heavy building materials on the job. After the injury, Mr. F went to his primary-care physician (PCP), who diagnosed a cervical and lumbar strain but did not order an MRI.

When the pain did not abate, Mr. F sought treatment from a chiropractor to no avail. Eventually, the chiropractor suggested that Mr. F see a specialist.

Unable to work, Mr. F was living on disability benefits during this time. Before the disability insurance carrier would approve a visit with a specialist, it required an independent medical examination (IME). This evaluation would determine whether treatment was necessary and whether disability coverage was still warranted.

Dr. S, a 44-year old occupational medicine physician, was asked to conduct the exam and answer the following questions:


Continue Reading

  • Were Mr. F’s symptoms caused by a pre-existing back condition, or were they attributable to the accident at work?
  • What treatment would Dr. S recommend?
  • And finally, was Mr. F capable of returning to his job, or should his work be restricted?

When Mr. F arrived at Dr. S’s office, he was asked to sign a form stating that he understood the purpose of the exam was to provide a neutral and independent evaluation of his injury and that the visit did not create a patient-physician relationship with Dr. S.

After the examination, Dr. S came to the same conclusion as Mr. F’s primary care physician (PCP): cervical and lumbar strain. Dr. S prepared a report stating that the injury was stationary, that there was no indication for any work restriction or further medical care, and that Mr. F could return to work. Based on this assessment, Mr. F returned to work and did not seek further treatment.

Over the next several months, however, Mr. F’s condition continued to deteriorate and his pain did not relent. Unable to bear the pain, he took early retirement. Eight months after the accident, Mr. F qualified for the state’s Medicaid program and could finally afford to see a specialist, a neurologist who diagnosed cervical spinal cord compression and ordered immediate surgery.

The surgery prevented further damage to the patient’s spine, but during the several months between the accident and the surgery, the compression had caused part of Mr. F’s spinal cord to die. Mr. F developed central pain syndrome. The neurologist prescribed oxycodone to relieve the unrelenting pain, as well as sleep aids and muscle relaxants to reduce the patient’s nerve and muscle spasms.

From then on, Mr. F was forced to rely on his elderly parents and 25-year-old son for financial support. At the suggestion of a friend, the patient contacted a plaintiff’s attorney to discuss suing the physicians who failed to diagnose his injury properly.

The attorney agreed to take the case, but before it got to court, Mr. F died of an accidental overdose of painkillers. His parents and son took over as the plaintiffs, filing a medical malpractice and wrongful death action against Dr. S, the chiropractor, and the PCP.

Dr. S’s attorney assured him that he could not be held liable because no physician-patient relationship existed. The jury, however, disagreed. After hearing days of testimony about the injury and diagnoses from expert physicians on both sides, the jury awarded Mr. F’s family $5 million. Fault was apportioned among the defendant clinicians, and Dr. S was found to be 28% at fault.

Dr. S immediately appealed the verdict. His attorney argued that Dr. S owed no duty of care to Mr. F, since he was functioning as an agent of the insurance company and Mr. F had signed the statement specifically acknowledging that the IME visit did not initiate a doctor-patient relationship.

The appellate court disagreed, upholding the jury’s verdict. It ruled that an IME doctor still has a duty to comply with the standard of care applicable to someone with his skill, training, and knowledge and that Dr. S owed a duty to provide that care to Mr. F.