Filing a Medical Malpractice Action against a Negligent Workers Comp Doctor in Virginia


According to the Journal of the American Medical Association (JAMA), medical negligence is a big problem affecting the country. A recent study found that medical malpractice is the third leading cause of death in America, right behind heart disease and cancer. Each year billions of dollars are paid to and on behalf of medical malpractice victims.


You may have a medical malpractice claim in Virginia if your health care provider’s negligence caused your injury or harm A bad outcome alone isn’t proof of medical negligence, but it may be a sign that you should contact an experienced medical malpractice attorney to investigate your situation and evaluate your legal rights. We do not recommend taking on this type of case by yourself. Virginia’s medical negligence laws favor defendant health care providers.


But what if the negligent health care provider is a workers’ compensation doctor chosen by your employer and its insurance company? Can you sue a workers’ compensation doctor for medical malpractice in Virginia?


The answer is yes. You can sue a workers’ compensation doctor for medical malpractice in Virginia.


Even though your workers’ comp doctor is on the employer’s panel of physicians and paid by the workers comp insurance company, he or she still owes you a duty of care. He or she must provide acceptable care that meets the standards of what other health care providers in the field would provide. Any deviation from the appropriate standard of care and the workers’ comp doctor may be liable for your damages.


Though the Workers’ Compensation Act protects employers from being sued for medical malpractice, it does not provide any such protection to workers’ comp doctors. In Fauver v. Bell, 192 Va. 518 (1951), the court stated that there is no legal provision that relieves a third-party wrongdoer, including a physician, of liability for negligence. As such, an injured employee with a workers’ compensation claim in Virginia can also file a medical malpractice lawsuit against the negligent doctor.


But what if the negligent doctor was not an authorized treating physician and conducted only an independent medical evaluation (IME)?


Under the Virginia Workers Compensation Act your employer and its insurance company can force you to see a doctor of their choosing for a one-time medical examination. This is called an IME, though it’s anything but independent since the insurance company chooses the doctor. If you fail to attend the IME then the insurance company can file an employer’s application to cut off your temporary total disability benefits or medical treatment.


There is no expectation that an IME doctor will have a long-term physician-patient relationship with you, though we’ve seen that happen in some workers’ compensation cases. Nonetheless, the Virginia Supreme Court has found that a physician-patient relationship does exist because the injured worker gives implied consent in undergoing the examination and the physician gives express consent in agreeing to examine the injured worker.


It’s important to note that even though you may have a medical malpractice action against the IME doctor if he or she is negligent, such an action is limited in scope. The IME doctor has no duty to diagnose or treat you, so you cannot bring a successful medical malpractice claim based on those theories. If the IME doctor harms you during the examination, however, you may have a claim.


Does Medical Malpractice End My Workers’ Compensation Claim?


No. Your workers’ comp claim will continue even if you suffer further injury because the workers’ comp doctor committed malpractice.


Though the employer is not responsible for damages caused by medical malpractice, it does have to pay for medical treatment related to the workers’ comp doctor’s malpractice. If the medical malpractice causes additional wage loss or permanent disability, the employer is responsible for payment of those benefits as well.


Trying to resolve your workers compensation or medical malpractice claim can be frustrating, difficult, and time consuming. But help is available. Contact workers comp attorney and Newport News medical malpractice attorney Corey Pollard today for help resolving your case. And if you’re unable to return to work because of your industrial accident or the damages caused by medical negligence, we’ll help you get approved for Social Security disability benefits.