Courts Examining Limited Doctor/Patient Relationship

Marquis Dyer was injured in a fight and underwent surgery on his shoulder.

A civil lawsuit was filed, and the opposing party requested an independent medical examination. Before the exam, the plaintiff said he informed the physician that his arm should be lifted above a 45-degree angle, yet the doctor forcefully rotated the patient’s arm and shoulder to 90-degrees, detaching the labrum, which required surgery to reattach it to the shoulder. Dyer v. Trachtman, 420 Mich. 45, 679 N.W.2d 311(2004).

The area of law surrounding independent medical examinations (IME) by physicians has been marked by differing standards, given various states’ differing interpretations of the doctor/patient relationship under such circumstances. Generally, and IME is prescribed when an employer requests an employee to undergo certain testing to determine if it is possible for a worker to return to work.

Although the Dyer court recognized that the physician undertakes these duties generally in an adversarial situation, the Michigan Supreme Court determined in this case of first impression that a patient who was injured during an IME can bring a medical-malpractice action against the doctor. The doctor contended a physician/patient relationship had never been established, but the court found that the law "imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee."

The court held that a limited physician/patient relationship existed, and that given the IME physician’s limited duties, he did not exercise the standard of reasonable care commensurate with his experience and training.

The Illinois Supreme Court considered the issue where an employee was injured during the course of his employment, yet company physicians ordered the man back to work. Ultimately, his return to work aggravated his injuries to the point where he suffered a 25 percent loss of use of his left foot. McCormick v. Caterpillar Tractor Co., 85 Ill.2d 352, 423 N.E.2d 876 (1981).

In a lawsuit for negligent diagnosis and treatment against the treating doctors, who were co-employees of the plaintiff, the court found that the Worker’s Compensation Act provided the exclusive remedy. The court held that the employer "provided treatment on the basis of the employer-employee relationship and not as a treating physician." Id., 85 Ill.2d at 359.

In a vehement and well-reasoned dissent, though, Justice Seymour Simon found that the "dual capacity doctrine" should have been invoked, as many other previous states had held, because the doctor was not acting as an agent of the employer but as a physician. In fact, in Stewart v. County of Cook, 192 Ill.App.3d 848, 549 N.E.2d 674 (1st Dist.1989), Justice Mary Ann McMorrow – then sitting on the appellate court – recognized the "dual persona doctrine" and found that an employee may recover outside of the Workers’ Compensation Act for injuries sustained during the course of employment where the employer was acting as a separate legal entity.

In McCormick, Justice Simon pointed out that Caterpillar’s medical treatment of its employees was not part of its business. "In the phrase ‘company doctor,’ which word is more significant?" Simon rhetorically asks. Id., 85 Ill.2d at 372. He goes on to ask, "Why should Caterpillar be able to shield itself and its doctors from liability by paying them a salary instead of a fee?" Id., at 369. Had the injury occurred in a private doctor’s office, Justice Simon recognized that the employee would have had the protection of the compensation system as well as tort laws. Justice Simon separated the original injury on the job from the separate injury of the physicians’ aggravating it by ordering the employee back to work.

"The victim is not necessarily out of luck if the aggravation happens to be caused by the original employer or another employee." Id., at 365. In examining the situation from a practical standpoint, Justice Simon said, "McCormick probably felt like a patient rather than an employee. If someone had asked what he was doing at the clinic, neither McCormick nor anyone else would have said, ‘working’. The doctors probably felt like doctors: They did not go to school all those years to become Caterpillar employees, and when strangers ask them what they do, they probably do not say they are employees of Caterpillar." Id., at 376.

The legislature has determined that injuries on the job are a cost of doing business, but negligent medical treatment is not one of those contemplated risks under workers’ compensation laws,, Justice Simon aptly pointed out. "Medical malpractice is not an inherent risk of the tractor business, or of whatever line of work McCormick was in when first injured. It is a feature of medical practice, and its costs should be borne by the medical profession, an ancient and distinct one." Id., at 371.

Given such potential disagreement, a majority of the courts that have considered lawsuits brought by employees against doctors engaged by employers to examine them have ruled that no doctor/patient relationship exists. 10 A.L.R.3d 1071 (1996).

Over the years, however, several exceptions have been carved out of this rule, and it appears that more and more courts are recognizing the notion of a limited physician/patient relationship when negligence occurs.

for example, a Minnesota court ruled early on that a plaintiff could bring suit to recover for injuries incurred during such an exam under the doctrine of respondeat superior. Jones v. Tri-State Telephone and Telegraph Co., 118 Minn. 217, 136 N.W. 741 (1912). In New York, when a physician caused further injury, a medical malpractice cause of action was upheld against the doctor on an implied contract theory. Gilinsky v. Indelicato, 894 F.Supp. 86 (E.D.N.Y.1995). In Duprey v. Shane, 39 Call.2d 781, 249 P.2d 8 (1952), a California court held that a nurse who was injured at her employer’s chiropractic clinic was not barred by the state’s worker’s compensation act because he was acting in his capacity as a doctor, not her employer.

Courts are more carefully examining the relationship of the physician to the patient under the IME circumstances as well as the duties that arise thereunder. A growing number are finding that the physician owes the examinee a limited duty of professional care. Beadling v. Sirotta, 41 N.J. 555, 197 A.2d 857 (1964); Reed v. Borjarski, 166 N.J. 89, 764 A.2d 433 (2001); Greenberg v. Perkins, 845 P.2d 530, 534 (Colo.1993); Stanley v. McCarver, Ariz. , 92 P.3d 849 (2004).

That is the course the Michigan Supreme Court followed in Dyer.