IME Doctor Can be Liable for Negligent Diagnosis
Torts—IME Doctor's Duty of Care to Plaintiff
Ritchie v. Krasner, __Az. Adv. Rep. __ 1 Ca-CV 08-009 (App. Div I, April 21, 2009)(Justice Irvine)
EVEN ABSENT FORMAL DOCTOR-PATIENT RELATIONSHIP A DOCTOR CONDUCTING AND IME OWES A DUTY OF REASONABLE CARE TO HIS PATIENT
Plaintiff injured his back, underwent treatment and missed work. Over time he was treated by a number of doctors and sent for an IME with defendant Krasner by his workers comp carrier. Before the IME exam was performed the plaintiff signed a form acknowledging that “no doctor-patient relationship exists between you and Dr. Krasner.”
After the exam the IME doctor opined to the employer, among other things that the plaintiff was stationary and had no work restrictions. Plaintiff then returned to work for a period and did not seek further medical treatment for several months. Ultimately he required spinal cord decompression surgery and it was alleged his condition was worsened and his pain and suffering prolonged by the delay in getting the surgery. The plaintiff attributed the delay to his reliance on Dr. Krasner's statement that he was stationary and had no restrictions.
The jury returned a $5 million verdict for plaintiff attributing 28.5% fault on Dr. Krasner. Krasner appealed raising several issues most notably a lack of duty to plaintiff because there was no doctor-patient relationship. The Court of Appeals affirmed the verdict.
First the court found a duty did exist even absent a formal doctor-patient relationship (hence signing the acknowledgment was irrelevant) where the doctor is in a unique position to prevent harm and the plaintiff relied upon his diagnosis. In such case, under Gipson, the doctor must “conform to the legal standard of reasonable conduct in the light of the apparent risk” and it is up to the jury whether the duty was breached. This holding is further supported by the “volunteer” liability provision in section Restatement 324. “We do not hold that every IME physician has a duty of care in every situation. In this case, Krasner was hired to determine the extent of Jeremy's work-related injury and make treatment recommendations.”
Issues were also raised concerning proximate cause, intervening and superseding cause, apportionment of fault, amount of the verdict, and the evidentiary decisions to not allow evidence of plaintiff's alcoholism, admission of financial condition and loss of benefits suffered by plaintiff and alleged misconduct of plaintiff's attorney in closing argument. All of these issues were summarily decided in favor of the plaintiff. Most notably, it was found not to be error for plaintiff's counsel to argue no fault on a doctor he had sued in the case where the only reason he sued the doctor was the defendant's designation of this doctor as a non-party at fault.