It has many different terms – independent medical examination (IME), defense medical examination (DME), and consultative examination (CE) – just to name a few. No matter the precise term used, we are referring to a medical examination the opposing party forces you to undergo when you have an active personal injury, medical malpractice, Virginia workers compensation, or Social Security Disability claim.
Why do I have to go to the IME?
The short answer: because the applicable rules and law say so.
Rule 4:10(a) of the Rules of Supreme Court of Virginia governs independent medical examinations in personal injury claims. The Rule states: “When the mental or physical condition (including the blood group) of a party … is in controversy, the court … upon motion of an adverse party, may order the party to submit to a physical or mental examination by one or more health care providers … employed by the moving party or to produce for examination the person in the party’s custody or legal control.
Virginia Code Section 65.2-607(a) governs independent medical examinations in workers’ comp claims. The statute states: “After an injury and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Commission, shall submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Commission.”
And Code of Federal Regulations Section 404.1519a gives the SSA authority to ask you to attend a consultative examination when you have a pending SSD or SSI claim.
Can I Bring a Cause of Action for Medical Malpractice Against the IME Doctor?
The Supreme Court of Virginia has weighed in on whether you can sue an IME doctor for malpractice for his or her conduct during a Rule 4:10 examination. And the answer is yes.
In Harris v. Kreutzer, 271 Va. 188, 624 S.E.2d 24 (2006), Harris appealed from the judgment of the Circuit Court of the City of Newport News, which granted the defendants’ demurrer. The Supreme Court of Virginia reversed, finding that there is a cognizable cause of action sounding in medical malpractice for the conduct of a Rule 4:10 examination.
Harris alleged she sustained a traumatic brain injury (TBI) as the result of an automobile accident. She brought a personal injury action for damages resulting from that accident. At the defendant’s request, the trial court in that case ordered Harris to undergo a medical examination pursuant to Rule 4:10 to determine the nature and extent of her TBI. The defendant in the automobile accident case retained Dr. Jeffrey Kreutzer, a licensed clinical psychologist, to conduct the examination.
Subsequently Harris filed a motion for judgment against Dr. Kreutzer, alleging medical malpractice, defamation, and intentional infliction of emotional distress arising out of the Rule 4:10 examination. Harris alleged that Dr. Kreutzer verbally abused her and accused her of being a faker and malinger. She alleged that in doing so, Dr. Kreutzer breached his duty to her in the conduct of the Rule 4:10 examination because he failed to comply with the applicable standard of care.
Dr. Kreutzer filed a demurrer, arguing that a Rule 4:10 examination did not create a physician-patient relationship, so he owned no legal duty to Harris and could not be liable for medical malpractice. In granting the demurrer with respect to the medical malpractice claim, the trial court opined, “I understand that there can be situations in which a cause of action is stated even with an IME. The Court is of the opinion that this is not such an example.”
On appeal the Supreme Court of Virginia disagreed with the trial court.
First the Court analyzed whether a physician-patient relationship exists in a Rule 4:10 examination. It found that it does because the plaintiff gives implied consent in undergoing the examination, and the physician gives express consent in agreeing to conduct the examination.
Next the Court examined whether a Rule 4:10 examination is “health care” rendered by a “health care provider” to a “patient.” After looking at the language of Code Section 8.01-581.1, the Court determined that a Rule 4:10 examination is health care provided by a health care provider to a patient.
Finally the Court examined the scope of a malpractice cause of action for the conduct of a Rule 4:10 examination. It determined that such a medical malpractice cause of action “is very limited” because of the nature of the physician-patient relationship in such an examination. It further stated:
The physician’s professional duty in the conduct of a Rule 4:10 examination relates solely to the actual performance of the examination. Unlike a physician in a traditional physician-patient relationship, a Rule 4:10 examiner has no duty to diagnose or treat the patient, and no liability may arise from his report or testimony regarding the examination. Because the Rule 4:10 examination functions only to ascertain information relative to the underlying litigation, the physician’s duty in a Rule 4:10 setting is solely to examine the patient without harming her in the conduct of the examination.
In summary … a Rule 4:10 physician’s duty is limited solely to the exercise of due care consistent with the applicable standard of care so as not to cause harm to the patient in actual conduct of the examination.
So what does it all mean? It means that your IME doctor still owes you a duty of care, even though you are not his or her patient. If you suffered personal injury due to the IME doctor’s behavior, you may have a cause of action for your damages. Contact Richmond medical malpractice lawyer and medical negligence attorney Newport News VA Corey Pollard for a free consultation. We are here to help you.