Injury at the Independent Medical Examination


What happens if you get injured at the so-called Independent Medical Examination or IME?

In a recent case, Bazakos v. Lewis (App. Div. 2d Dep’t # 11722-06), plaintiff claimed that he was injured during defendant’s IME. 

Plaintiff had been in a car accident.  At the IME plaintiff, a chiropractor, claims that defendant’s examing orthopedist grabbed plaintiff’s head and twisted and pulled it so that plaintiff sustained new nerve injuries in his neck.

This incident lead to a second lawsuit in which plaintiff sued the orthopedist for injuries sustained at the IME.

The issue before the Appellate Division was whether plaintiff’s new lawsuit sounded in negligence or medical malpractice?  The statute of limitations for negligence is 3 years, and the statute of limitations for medical malpractice is 2 years and 6 months.  Plaintiff’s lawsuit was commenced 2 years and 11 months from the date of injury at the IME.  Defendant urged that the case was not commenced timely.

The appellate court answered that the 3 year statute of limitations is applicable and that the case was timely commenced.  

In order to have a medical malpractice case there must be a patient-doctor relationship.  Such never existed here.  The IME physician was not treating the plaintiff.  The IME orthopedist was examining plaintiff in connection with the medical claims in plaintiff’s prior lawsuit.

Although the IME doctor is not rendering medical treatment to plaintiff, he must act reasonably and prudently when conducting the IME.  In other words, he must act reasonably under the circumstances, and he must not do anything which would further injure or harm plaintiff.

It is interesting to note that this decision was a vote of three to two.  Two justices dissented and found that this was medical malpractice.  The dissenting justices reasoned that although there was no patient-doctor relationship, nonetheless, the IME doctor must exercise his best medical judgment as if he had been subjecting his own patient to the very same examination.  In other words, in keeping with good medical practice, the examining doctor should not affirmatively injure the person being examined whether it is a patient or plaintiff in a lawsuit.

In any event, the majority ruled that this is a negligence case and not a medical case against the IME doctor.  We will watch to see if this case gets appealed to the Court of Appeals.

Over the years we have had cases in which clients have sustained new injuries at the IME. 

If you have been injured at either an IME or a medical examination, please feel free to discuss it with me at 800-581-1434.

Mark E. Seitelman, 10/1/08, www.seitelman.com.

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2 Responses to Injury at the Independent Medical Examination

  1. Morris Owen says:

    In September 2005 I attended an examination by an IME to
    confirm my entitlement for state benefit. It was known to the IME that i had an advanced condition of Lumbar and Cervical spondylosis / a neck misalignment of 25 degrees / Loss of lordosis in the cervical and lumbar spine / Osteo porosis in the lumbar spine / Wedging and slippage in the neck . However the IME carried out an axial load test on my neck and it caused signifgant distres /pain.

    The claim in negligence was struck out because of solicitors neglect but the writ was not issued until just before the 3 year period of limitation

    On a witjhout prejudice basis would you say that there could have been a malpratice claim or is it a negligence claim. On a without prejudice basis are you able to confirm if the 30 month limitation rule for malpractice applies in the UK or is it just a US decision

    Thank you for reading the email and please help me

    Regards

    Morris Owen

  2. Dear Morris:

    Thank you for your comment.

    We have had a couple of complaints from clients that the IME doctor was too rough and aggravated their injuries. In those instances we did not see a viable claim. The IME doctor would have had to have done something that was clearly negligent causing a new injury, such as fracturing a few ribs.

    A claim against the IME doctor would sound in negligence and not medical malpractice because there is no doctor-patient relationship. There were some recent New York appellate decisions discussing the distinction between a medical malpractice claim and a negligence claim. The statute of limitations in New York for negligence is 3 years from the date of the incident.

    Since it appears that your claim arises in the UK, then you should consult with a local solicitor. I cannot venture an opinion on UK law.

    Good luck.

    Mark E. Seitelman

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