November 2011 Bulletin

 

Independent Medical Evaluations and Professional Liability    

                                         David L. McCann, M.D.

Legal decisions by the Utah State Courts have significantly decreased the risk of successful lawsuits against physicians in Utah who perform “independent medical evaluations” for third parties.  A malpractice lawsuit against an independent medical examiner was dismissed on motion for summary judgment.   The trial court’s decision was allowed to stand, after affirmation by the Court of Appeals, when the Utah Supreme Court declined to review the specific case in question on March 16th, 2007. 

Performing independent medical evaluations is a low profile medical subspecialty which requires extensive clinical experience and knowledge of medical legal issues.  Third parties often have a need for objectively based independent medical information to adjudicate claims.   Some of the agencies which request these evaluations include law firms, workers compensation insurance carriers, disability insurance carriers, or agencies or organizations which employ persons whose medical conditions may be a significant factor in the workplace.  Physicians who perform independent medical evaluations in the course of practicing medicine may believe that they are shielded from lawsuits because they are performing a service requested by a third party and not providing medical care through a doctor-patient relationship.  The problem in Utah was that until now, there were no Utah statutes or case law to support immunity from lawsuits for physicians who perform independent medical evaluations.

The case in question occurred when an employee of a Utah government agency believed he had lost his job as a consequence of an independent medical evaluation report dated February 28th, 2000 which I provided at the request of the agency.  The employee had been terminated once for his behavior during an incident of record.  He was reinstated as part of a bargain that was worked out with his union and the agency involved, pending the results of an independent psychiatric evaluation.  The independent medical evaluation report which I provided concluded that the employee had exhibited very poor judgment under the circumstances, and that the employee's behavior was consistent with a diagnosis of Personality Disorder with Paranoid and Narcissistic traits, which would place him at high risk to make similar errors in the future.  On the basis of criteria used by the agency to determine psychological suitability for the type of work which the employee performed, I concluded that the employee was not psychologically suitable to safely perform the duties of his occupation.  Subsequently, the employee was terminated.  Consistent with the diagnosis of Personality Disorder with Narcissistic and Paranoid Traits, the then ex-employee filed lawsuits against multiple agencies and individuals who he believed had conspired against him.

On September 30th, 2003 the ex-employee, now a plaintiff, and his attorney filed a medical malpractice lawsuit against me based on the findings and conclusions of the independent medical evaluation report. 

My standard procedure is to require persons undergoing independent medical evaluations to sign a "Statement of Conditions for Independent Medical Evaluation”, which clearly states that the individual’s visit is for evaluation only, that no doctor/patient relationship will be established, that no treatment will be provided, and that a written report will be submitted to the agency requesting the report.  As a final step in performing an independent medical evaluation, the evaluees are provided with a written question, "Were you satisfied with the way this examination was performed?"  The plaintiff checked “yes” and offered no other comments.

The complaint alleged that I misrepresented myself as an "independent medical examiner" and alleged that I had made "fraudulent statements."  It alleged conspiracy between me and the plaintiff's employing agency.  It alleged "libel, slander, negligence, fraud, racketeering and obstructing justice."  It claimed economic damages, as well as “pain, suffering and inconvenience.”  On November 4th, 2003, given the plaintiff’s allegations of criminal misconduct, I received a letter from my professional liability carrier stating that the policy had an exclusion clause for punitive or exemplary damages, and that my policy would not cover any such claims upheld by the courts.  So much for the piece of mind which came from believing that I was fully covered for malpractice liability, and that my personal assets were not at risk.  On January 16th, 2004 the plaintiff offered to settle the matter for 1.25 million dollars. 

Needless to say, I believed that the allegations were frivolous without foundation.  I have always maintained high standards for objectivity and my conclusions are based on medical evidence.  As most physicians are aware, or hopefully will become aware of after reading this article, there is no penalty for filing subjectively based allegations in a court of law for legal determination by a judge or jury.

My UMIA appointed defense attorney and I responded by stating that I owed no “legal duty” to the plaintiff because the report in question was for evaluation only at the request of the state agency involved; and I did not have a doctor/patient relationship with the plaintiff as defined by law.  Therefore, I could not be sued for malpractice.  In addition, our defense stated that the lawsuit should be dismissed because the action had exceeded the two year statute of limitations.  We filed a motion for summary judgment for dismissal of the lawsuit.

On January 27th, 2005 Judge Judith S. Atherton heard the arguments in the Third Judicial District Court, and on April 25th, 2005 granted our motion for summary judgment and dismissed the action with prejudice (indicating that the lawsuit could not be re-filed) on the basis that "defendant David L. McCann, M.D., owed no legal duty to the plaintiff from which legal action could be commenced; and that the action was barred by the two statute of limitations.”

As anticipated, the plaintiff appealed.  On November 16th, 2006 a three judge panel writing for the Utah Court of Appeals determined that after a thorough review of the legal issues, that "Without the existence of a physician/patient relationship between McCann and (the plaintiff), the plaintiff cannot maintain a medical malpractice claim against McCann.  Because (the plaintiff) was not McCann's patient seeking psychiatric treatment and because the contract for medical services was between McCann and the (agency), not McCann and (the plaintiff), we conclude that there was no physician/patient relationship between McCann and the plaintiff.  Therefore, the trial court did not err when held that McCann owed no legal duty to (the plaintiff) from which a [medical malpractice] action could be commenced."   (Apparently, the Court of Appeals did not believe it was necessary to address the issue that the claim had exceeded the statute of limitations).

The plaintiff and his attorney filed a Petition for Re-hearing by the appellate court.  On December 8th, 2006 the Petition for Re-hearing was denied.  As anticipated, the plaintiff appealed to the Utah State Supreme Court.  On March 16th, 2007 Christine M. Durham, Chief Justice of the Supreme Court of the State of Utah issued an order denying the plaintiff's request for a hearing before the Supreme Court, affirming the determinations by the trial court and the appellate court.

So what can be learned from an experience such as this?  For one, any disgruntled person can file a lawsuit and you will have to defend against it.  When performing an independent evaluation for third parties, never use the word "patient".  Use words such as "claimant", "evaluee", “individual”, plaintiff, or in fitness for duty evaluations, perhaps use the term "employee".  I would recommend that any physicians performing independent evaluations be sure that the evaluees sign a Statement of Conditions such as the one which the plaintiff signed in this case.  The courts cited the statement signed by the plaintiff as very strong evidence for their favorable determinations.  I think it is also helpful to have evaluees sign a separate statement immediately after the evaluation as to whether they were pleased with how the evaluation was conducted.  In this case, the plaintiff answered "yes", he was satisfied.  Having that statement helps make subsequent claims of inappropriate behavior less credible.  Another suggestion is to be sure of your professional ability to sort out objective factors and to write clearly.  When you write, be very careful with the words you use.  The Utah Medical Insurance Association was very supportive in my fight against this unfounded lawsuit.  If you perform independent medical evaluations, be sure your professional liability carrier will cover you.

The best thing that came out of this seven year process, which created a very tall stack of documents and cost my malpractice carrier $88,472.70, is that Utah now has case law that will make it much more difficult for disgruntled evaluees to file successful lawsuits against independent examining physicians.  The decision may be used by courts in other states to support favorable decisions for independent medical examiners elsewhere.

 

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Until next month--

Daven Morrison MD
AOOP Board President

AOOP is a fully independent psychiatric organization that relies solely on its members for financial support.