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.