Aug 9, 2021

Utah IME Physician May Not Be Sued by Workers’ Comp Claimant

Finding that a physician-patient relationship did not exist between a doctor hired by the workers’ compensation carrier to perform an independent medical examination of the claimant, the Supreme Court of Utah affirmed the dismissal of a civil action filed against such an IME physician where the physician’s opinion and report indicated the claimant no longer suffered from limitations associated with a work-related injury and where the claimant contended that the physician’s opinion resulted in delays in his underlying workers’ compensation case [Kirk v. Mark Anderson, M.D., 2021 UT 41, 2021 Utah LEXIS 97 (Aug. 5, 2021). The Court stressed that to hold otherwise would have a chilling effect upon the willingness of health care providers to come forward in providing this valuable service to society.

Background

Kirk filed a claim for workers’ compensation benefits after he sustained an injury in a work-related vehicle accident. Broadspire, the carrier’s third-party administrator, arranged for an IME of Kirk’s injuries for the purpose of evaluating the claim, retaining Dr. Mark Anderson to perform the evaluation. In October 2016, Anderson conducted his evaluation by meeting with Kirk and reviewing various medical records.

Anderson’s report concluded that the accident caused Kirk to suffer a transient cervical strain and that all other symptoms that Kirk complained of or had been treated for since the accident were secondary to pre-existing conditions. Building upon that conclusion, Anderson further concluded that Kirk: could return to work with only the limitation of his pre-existing arthritis; had achieved maximum medical improvement on April 19, 2015, three days after the accident; should be released from care with no restrictions; and did not qualify for an impairment rating apportionable to the work-related accident. As a result of the IME report, Broadspire denied Kirk various forms of workers’ compensation benefits.

Kirk disagreed with Anderson’s conclusions and filed an application for a hearing before the Utah Labor Commission. Three years after the accident, the Commission determined that the accident caused a left knee ACL tear; aggravation of pre-existing L4-S1 spine degeneration; temporary cervical whiplash; and a mild concussion. It ordered the employer and/or the carrier to pay Kirk’s related medical expenses.

Civil Action Against Anderson

Kirk then filed a civil action against Anderson alleging negligence and reckless conduct and vicarious liability against Broadspire for Anderson’s conduct. Kirk alleged various injuries stemming from the delay in proceedings caused by the allegedly erroneous IME. Broadspire moved to dismiss based on the theory that Anderson did not owe Kirk a duty of care because no physician-patient relationship existed in the context of an IME. Thus, Broadspire argued, it could not be vicariously liable. The district court ultimately dismissed Kirk’s case and Kirk appealed.

Kirk’s Contentions

The Supreme Court said the question before it was whether the district court erred in finding that an independent medical examiner owes no duty of care to an examinee. The Court said Kirk had lodged two separate bases for establishing a duty in such circumstances: first, that a limited physician-patient relationship exists between examiners and examinees; and second, that, even absent a physician-patient relationship, a health care provider owes a limited duty to a non-patient arising from the provider’s affirmative act.

No Physician-Patient Relationship Here

The Court observed that the trial court had, in relevant part, relied upon the Court of Appeals’ holding in Joseph v. McCann, 2006 UT App 459, 147 P.3d 547. The Court noted that since McCann was a determination by the court of appeals, it not binding authority. Nevertheless, the Court found its reasoning persuasive and adopted it in the instant case.

Was Kirk a Patient?

The Court stressed that a physician-patient relationship between a physician and an individual can only be recognized when the individual is in fact a “patient” [quoting McCann, ¶ 12]. The question here, then, was not whether an independent medical examiner may be considered a physician, but rather who may be considered a patient.

The Court continued that in order to establish a physician-patient relationship, an express or implied contract must exist, and such a contract arises from what might be characterized as a bargained-for exchange, with consideration, between a plaintiff seeking treatment and a physician providing treatment. Because Kirk did not seek treatment from Anderson, nor did Anderson provide treatment to Kirk, Anderson was not under an express or implied contract to provide health care to Kirk. Thus, no physician-plaintiff relationship existed.

The Court added that an IME of an allegedly injured employee for workers’ compensation purposes is, generally speaking, not performed for the purpose of providing treatment. Rather, the purpose of an IME, in the workers’ compensation setting, is to provide the carrier, and potentially the relevant fact finder, with independent information on the claimant’s injuries.

The Court noted that even if Kirk were correct in arguing that workers’ compensation’s “sole purpose for being is to provide injured workers’ necessary and reasonable medical care”—and he was not, said the Court—his argument would nonetheless fail. The Court agreed with McCann’s holding that, in addition to treatment, there must be an “express or implied contract to provide health care” between the parties [McCann¶ 13].. No such contract existed between Kirk and Anderson. Notably, during the IME, Anderson informed Kirk that they were not establishing a doctor/patient relationship. And even if this express disclaimer were insufficient, the facts provided further support. Kirk did not knowingly seek the assistance of a physician.

Health Care Providers Owe No Duty for Injuries Flowing From Delay in Proceedings

As to Kirk’s second primary contention, finding unpersuasive Kirk’s arguments related to the holding in B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228, the Court declined to find a duty where, as here, the harms allegedly caused by the health care provider in providing an IME flowed from a delay in proceedings. The Court acknowledged that under Jeffs, a health care provider might owe some duty of care, the Court concluded that public policy disfavored a duty for injuries flowing from a delay in proceedings. The Court stressed that there was no limiting principle that would prevent the chilling of expert involvement in disputes if the Court were to accept Kirk’s argument that health care providers owe a duty of care in performing IMEs. The Court added that experts play a crucial role in all manner of proceedings in providing unbiased expertise and preserving trust relationships. Moreover, experts typically have no special relationship with the subject of their examination, analysis, or opinion, but rather a contractual relationship with their client.

IME’s Duty

The Court said that to impose a categorical duty of care running from the IME physician to the subject would put the examiner in an untenable position, if not create an outright conflict of interest. While the Court hesitated to make such a finding specifically it indicated that it could safely say that an independent medical examiner who has otherwise conducted an IME in good faith and has met his or her standard of care has fulfilled his or her duty, regardless of whether the results were favorable to the insurer or to the IME subject. Even if Anderson’s IME report constituted an affirmative act with foreseeable harms, he was not liable for Kirk’s injuries resulting from the delay in the workers’ compensation proceedings.