The IME and the Physician/Patient Privilege

The state filed a motion for a ruling that Wilson was not entitled to assert the privilege, contending the privilege did not preclude testimony from the five physicians who had treated Wilson as part of his workers' compensation claim. The trial court largely denied the motion, precluding the state from calling all but one physician, Dr. Krasner, whom the state claimed had seen Wilson for an IME rather than for treatment. Wilson moved for reconsideration of the ruling and, after a hearing, the trial court ruled in Wilson's favor. This appeal followed.

The state argued on appeal that because Wilson saw Dr. Krasner on an IME basis only, he could not assert the physician/patient privilege with respect to that doctor's testimony. The court began its analysis under Arizona Revised Statute, ' 13-4062(4), which provides that 'a physician or surgeon shall not be examined as a witness 'without consent of the physician's or surgeon's patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient.” The court noted that '[t]he privilege is primarily intended to protect 'communications made by the patient to his physician for the purpose of treatment ' to [e]nsure that the patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor.'

The state cited to the case of Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (App. 1995), in attempting to bolster its argument that consulting a physician for an IME does not trigger the physician/patient privilege. In Hafner, a workers' compensation claimant saw a doctor for an IME. The court there held that because no doctor-patient relationship existed between the IME physician and the workers' compensation claimant he had examined, the physician owed no duty to the claimant, only to the workers' compensation carrier that had requested the physician's services.

The court here noted, however, that absent clear evidence to the contrary, the patient's subjective belief as to the purpose of the examination controls whether a privilege does or does not apply. The state had the burden of proving that before or during the examination, Wilson was aware that Dr. Krasner was an IME physician and was not seeing him for purposes of rendering treatment. The trial court had apparently ruled that that burden was not met and found no waiver of the privilege from the evidence presented.

Ruling from the Appellate

The appellate court, after reviewing the record, found that the trial court had adequate evidence before it from which to have properly concluded that the state failed to meet its burden of proving that the privilege had been waived. For example, 1) Dr. Krasner's report was not titled or referred to as an 'independent medical examination'; 2) Although Dr. Krasner stated during a pretrial interview that he normally asked patients to sign an authorization for an IME, his file contained no such authorization, and he could not recall whether he'd discussed the nature of the examination with Wilson; 3) The letter the city's workers' compensation administrator sent to Wilson to schedule his visit with Dr. Krasner referred to the appointment as a 'consultation' and was identical to two other letters the administrator previously had sent to Wilson to notify him of other appointments with treating, non-IME physicians; and 4) There was a notation in the administrator's claim file that when Dr. Krasner 'sees [Wilson] he can give [him a] new [treatment] plan.' All these circumstances could have reasonably suggested to Wilson that the appointment with Dr. Krasner was not for an IME.

The state also contended that Ariz. Rev. Stat. ' 23-908(C) expressly prevents anyone who files a workers' compensation claim from asserting the physician-patient privilege. The statute further provides that in the context of a workers' compensation case, information obtained by any physician or surgeon examining or treating an injured person shall not be considered a privileged communication if such information is requested by interested parties for a proper understanding of the case. But here, in the context of a criminal prosecution, the court found that the state had failed to establish its status as an 'interested party' under the statute 'for the purposes of inspecting, much less introducing in a criminal prosecution, otherwise privileged medical evidence from a workers' compensation file.' Therefore, the appellate court affirmed the lower court's ruling that Wilson was entitled to assert the physician/patient privilege with respect to Dr. Krasner.

Conclusion

What controls the status of an IME in terms of privilege then is the patient's subjective understanding of the reason the patient attended the examination. Although patients often have ulterior motives included in their motive to seek legitimate medical care, the physician/patient privilege will attach even to an independent medical examination, absent 'clear, objective evidence' that the patient knew the exam was not undertaken for the purpose of rendering treatment.

Elliot Oppenheim, MD/JD/LLM Health Law, is CEO and president
of coMEDco Inc.', a national medical-legal consultation corporation. Phone: 800-416-1192. ' Terra Firma Publishing Company.

Does a patient lose the right to invoke the physician/patient privilege when he or she has seen a physician for an independent medial examination (IME) rather than for treatment? The question may come up in the aftermath of a workers' compensation or medical malpractice case if questions of possible fraud on the claimant's part surface, and you may be asked to advise your client as to his or her rights.

Arizona v. Wilson

The court in Arizona v. Wilson , 200 Ariz. 390, 26 P.3d 1161 (Ariz. App. 2001) was faced with this question in the context of a criminal case in which the state charged defendant Thomas Wilson with fraudulent scheme and artifice and theft by misrepresentation for allegedly having filed and pursued a fraudulent claim for workers' compensation benefits against the City of Tucson during his employment with the Tucson Police Department. The indictment was based largely on alleged discrepancies between Wilson's physical activities, as seen in surveillance videos obtained by the city, and complaints to physicians of certain physical limitations. The criminal case was dismissed without prejudice after Wilson invoked the physician/patient privilege with respect to all five physicians he saw following the alleged injury.

The state filed a motion for a ruling that Wilson was not entitled to assert the privilege, contending the privilege did not preclude testimony from the five physicians who had treated Wilson as part of his workers' compensation claim. The trial court largely denied the motion, precluding the state from calling all but one physician, Dr. Krasner, whom the state claimed had seen Wilson for an IME rather than for treatment. Wilson moved for reconsideration of the ruling and, after a hearing, the trial court ruled in Wilson's favor. This appeal followed.

The state argued on appeal that because Wilson saw Dr. Krasner on an IME basis only, he could not assert the physician/patient privilege with respect to that doctor's testimony. The court began its analysis under Arizona Revised Statute, ' 13-4062(4), which provides that 'a physician or surgeon shall not be examined as a witness 'without consent of the physician's or surgeon's patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient.” The court noted that '[t]he privilege is primarily intended to protect 'communications made by the patient to his physician for the purpose of treatment ' to [e]nsure that the patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor.'

The state cited to the case of Hafner v. Beck , 185 Ariz. 389, 916 P.2d 1105 (App. 1995), in attempting to bolster its argument that consulting a physician for an IME does not trigger the physician/patient privilege. In Hafner, a workers' compensation claimant saw a doctor for an IME. The court there held that because no doctor-patient relationship existed between the IME physician and the workers' compensation claimant he had examined, the physician owed no duty to the claimant, only to the workers' compensation carrier that had requested the physician's services.

The court here noted, however, that absent clear evidence to the contrary, the patient's subjective belief as to the purpose of the examination controls whether a privilege does or does not apply. The state had the burden of proving that before or during the examination, Wilson was aware that Dr. Krasner was an IME physician and was not seeing him for purposes of rendering treatment. The trial court had apparently ruled that that burden was not met and found no waiver of the privilege from the evidence presented.

Ruling from the Appellate

The appellate court, after reviewing the record, found that the trial court had adequate evidence before it from which to have properly concluded that the state failed to meet its burden of proving that the privilege had been waived. For example, 1) Dr. Krasner's report was not titled or referred to as an 'independent medical examination'; 2) Although Dr. Krasner stated during a pretrial interview that he normally asked patients to sign an authorization for an IME, his file contained no such authorization, and he could not recall whether he'd discussed the nature of the examination with Wilson; 3) The letter the city's workers' compensation administrator sent to Wilson to schedule his visit with Dr. Krasner referred to the appointment as a 'consultation' and was identical to two other letters the administrator previously had sent to Wilson to notify him of other appointments with treating, non-IME physicians; and 4) There was a notation in the administrator's claim file that when Dr. Krasner 'sees [Wilson] he can give [him a] new [treatment] plan.' All these circumstances could have reasonably suggested to Wilson that the appointment with Dr. Krasner was not for an IME.

The state also contended that Ariz. Rev. Stat. ' 23-908(C) expressly prevents anyone who files a workers' compensation claim from asserting the physician-patient privilege. The statute further provides that in the context of a workers' compensation case, information obtained by any physician or surgeon examining or treating an injured person shall not be considered a privileged communication if such information is requested by interested parties for a proper understanding of the case. But here, in the context of a criminal prosecution, the court found that the state had failed to establish its status as an 'interested party' under the statute 'for the purposes of inspecting, much less introducing in a criminal prosecution, otherwise privileged medical evidence from a workers' compensation file.' Therefore, the appellate court affirmed the lower court's ruling that Wilson was entitled to assert the physician/patient privilege with respect to Dr. Krasner.

Conclusion

What controls the status of an IME in terms of privilege then is the patient's subjective understanding of the reason the patient attended the examination. Although patients often have ulterior motives included in their motive to seek legitimate medical care, the physician/patient privilege will attach even to an independent medical examination, absent 'clear, objective evidence' that the patient knew the exam was not undertaken for the purpose of rendering treatment.

Elliot Oppenheim, MD/JD/LLM Health Law, is CEO and president
of coMEDco Inc.', a national medical-legal consultation corporation. Phone: 800-416-1192. ' Terra Firma Publishing Company.