Legal background

The waiver Mr. F signed did not impress the appellate court judges. They noted that Mr. F had relied on Dr. S’s determination that he was well enough to return to his job without further treatment. Consequently, he continued to work for months while his condition deteriorated.

Dr. S could be held responsible for the resulting damage, the judges ruled. The fact that a patient signed a waiver does not exonerate a physician from his duty of care, they said, noting that physicians always have a duty as professionals to conform to standards of care.

Protecting yourself

In its decision, the appellate court admitted that this case could have a chilling effect on physicians who perform IMEs, but it went on to state that “we do not hold that every IME physician has a duty of care in every situation.”

In this case, when Dr. S agreed to determine the extent of the injury and make treatment recommendations, he assumed a duty to conform to the legal and ethical standards of care. In other words, he owed Mr. F an adequate investigation of his pain and injury. Both the insurance company and Mr. F relied on Dr. S’s report, and the delay in Mr. F’s treatment caused irreparable damage.

Even when you are conducting routine IME for insurance purposes, it is essential to conduct the examination as carefully and thoughtfully as you would if the person were one of your established patients. 

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.