Verdicts

Michigan's High Court Finds IME Physicians Can Be Held Liable for Malpractice

In a case of first impression, Michigan's Supreme Court has held that a physician who performs an independent medical examination has a limited duty to use his medical judgment to avoid causing harm to the examinee, which, if breached, can give rise to a cause of action for medical malpractice. Dyer v. Trachtman, No. 123590, 2004 Mich. LEXIS 971 (Mich. 5/5/04).

Plaintiff was injured in a fight and underwent surgery. He brought an unrelated suit following the surgery. During the course of discovery in that civil action, the opposing party engaged the defendant physician to perform an independent medical examination (IME) of plaintiff. Plaintiff asserted that before the examination, he told the defendant that surgery had recently been performed on his shoulder and that his surgeon had placed restrictions on the movement of his right arm and shoulder. Among these restrictions was a caution to avoid lifting the arm above 45 degrees. Defendant nonetheless allegedly forcefully rotated plaintiff's right arm and shoulder 90 degrees, detaching the labrum from the right shoulder. This required plaintiff to undergo surgery to repair the new damage.

Plaintiff's original complaint alleged medical malpractice, among other claims. Defendant moved for summary disposition and argued that the IME did not give rise to a physician-patient relationship between plaintiff and defendant. Plaintiff moved to amend the complaint to raise additional claims, including ordinary negligence. The trial court agreed with defendant that no physician-patient relationship had been created and held that a claim of medical malpractice could not be brought. In addition, it denied plaintiff's motion to amend the complaint, concluding that amendment would be futile because any count sounding in negligence against the physician would in reality be a claim of medical malpractice that could be addressed only if the parties had a physician-patient relationship. The Court of Appeals agreed that a medical malpractice action would not lie due to the lack of a physician-patient relationship, but found that a claim for simple negligence was permissible.

The Michigan Supreme Court granted leave to appeal in order to consider, among other things, whether an IME physician might have some limited professional duty – short of the duty that would arise if a traditional physician-patient relationship existed – that could support a claim for medical malpractice. After reviewing persuasive authority from other courts, the Michigan Supreme Court concluded that an IME physician's relationship with an examinee does give rise to limited duties to exercise professional care. “The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports,” the court stated, but the “limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.” The court concluded that defendant's examination of plaintiff called upon defendant's professional judgment, that defendant made the medical decision to fully rotate plaintiff's arm to examine its range of motion despite plaintiff's caution against it, and that his actions gave rise to questions involving medical judgment. As such, the allegations fit within the parameters of a medical malpractice cause of action. Therefore, plaintiff's case for medical malpractice was reinstated and remanded for trial.

Physician's Concealment of Error Precludes Statute-of-Limitations Defense

The trial court correctly denied defendant's motion for summary judgment because issues of fact remained as to whether the defendant physician's concealment of her medical mistake equitably estopped her from asserting the statute of limitations as a defense to this malpractice action. Owen v. Mackinnon, No. 2003-06786, 2004 N.Y. App. Div. LEXIS 4965 (App. Div., 2d Dept. 4/26/04).

Plaintiff sought to have her intrauterine device (IUD) removed in 1970, but the defendant physician allegedly negligently failed to remove it. Plaintiff subsequently complained to defendant of irregular menstrual cycles and of an inability to conceive. Defendant, who allegedly knew of her own omission in failing to remove plaintiff's IUD, did not tell plaintiff that the IUD was still implanted in her uterus. Plaintiff brought this suit several years later, following discovery of the problem.

As a general rule, the limitations period for a medical malpractice action in New York runs from the date of the last act constituting the basis of the claim, and not from the date of discovery of the resulting injury unless a “foreign object” has been left inside a patient's body, in which case the complainant has one year from the date of discovery or the date on which he or she should reasonably have discovered the problem. CPLR 214-a. On defendant's motion for summary judgment, the lower court held that the suit was timely because the IUD constituted a foreign object and plaintiff brought this action within 1 year of discovering its continued presence in her body. Defendant appealed.

The Appellate Division, Second Department, noted that the foreign object exception to the 3-year limitations period was legislatively enacted in 1975, several years after the conduct complained of, so the foreign object discovery rule should not have been applied to the plaintiffs' claims. In addition, an IUD, which is intentionally placed in a patient's body as a means of contraception, is a “fixation device” that does not qualify as a “foreign object” under New York law, and a fixation device cannot be deemed to be transformed into a foreign object when a physician negligently fails to remove it. Thus, the plaintiffs' malpractice claim accrued when the defendant allegedly failed to remove the IUD, not when the plaintiff discovered that it had not been removed.

However, where a physician fraudulently conceals his or her malpractice, and the patient's reliance on the physician's representations and advice prevents discovery of the malpractice, the doctrine of equitable estoppel may be invoked to preclude the physician from asserting the statute of limitations as an affirmative defense. Here, the plaintiff alleged that the defendant deceived her into believing that the IUD had been removed, and concealed her failure to remove the IUD when the plaintiff subsequently complained of abnormal menstrual cycles and an inability to conceive. Under these circumstances, where there remained disputed issues of fact regarding the alleged concealment, a grant of summary dismissal of the malpractice claim was inappropriate.

Michigan's High Court Finds IME Physicians Can Be Held Liable for Malpractice

In a case of first impression, Michigan's Supreme Court has held that a physician who performs an independent medical examination has a limited duty to use his medical judgment to avoid causing harm to the examinee, which, if breached, can give rise to a cause of action for medical malpractice. Dyer v. Trachtman, No. 123590, 2004 Mich. LEXIS 971 (Mich. 5/5/04).

Plaintiff was injured in a fight and underwent surgery. He brought an unrelated suit following the surgery. During the course of discovery in that civil action, the opposing party engaged the defendant physician to perform an independent medical examination (IME) of plaintiff. Plaintiff asserted that before the examination, he told the defendant that surgery had recently been performed on his shoulder and that his surgeon had placed restrictions on the movement of his right arm and shoulder. Among these restrictions was a caution to avoid lifting the arm above 45 degrees. Defendant nonetheless allegedly forcefully rotated plaintiff's right arm and shoulder 90 degrees, detaching the labrum from the right shoulder. This required plaintiff to undergo surgery to repair the new damage.

Plaintiff's original complaint alleged medical malpractice, among other claims. Defendant moved for summary disposition and argued that the IME did not give rise to a physician-patient relationship between plaintiff and defendant. Plaintiff moved to amend the complaint to raise additional claims, including ordinary negligence. The trial court agreed with defendant that no physician-patient relationship had been created and held that a claim of medical malpractice could not be brought. In addition, it denied plaintiff's motion to amend the complaint, concluding that amendment would be futile because any count sounding in negligence against the physician would in reality be a claim of medical malpractice that could be addressed only if the parties had a physician-patient relationship. The Court of Appeals agreed that a medical malpractice action would not lie due to the lack of a physician-patient relationship, but found that a claim for simple negligence was permissible.

The Michigan Supreme Court granted leave to appeal in order to consider, among other things, whether an IME physician might have some limited professional duty – short of the duty that would arise if a traditional physician-patient relationship existed – that could support a claim for medical malpractice. After reviewing persuasive authority from other courts, the Michigan Supreme Court concluded that an IME physician's relationship with an examinee does give rise to limited duties to exercise professional care. “The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports,” the court stated, but the “limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.” The court concluded that defendant's examination of plaintiff called upon defendant's professional judgment, that defendant made the medical decision to fully rotate plaintiff's arm to examine its range of motion despite plaintiff's caution against it, and that his actions gave rise to questions involving medical judgment. As such, the allegations fit within the parameters of a medical malpractice cause of action. Therefore, plaintiff's case for medical malpractice was reinstated and remanded for trial.

Physician's Concealment of Error Precludes Statute-of-Limitations Defense

The trial court correctly denied defendant's motion for summary judgment because issues of fact remained as to whether the defendant physician's concealment of her medical mistake equitably estopped her from asserting the statute of limitations as a defense to this malpractice action. Owen v. Mackinnon , No. 2003-06786, 2004 N.Y. App. Div. LEXIS 4965 (App. Div., 2d Dept. 4/26/04).

Plaintiff sought to have her intrauterine device (IUD) removed in 1970, but the defendant physician allegedly negligently failed to remove it. Plaintiff subsequently complained to defendant of irregular menstrual cycles and of an inability to conceive. Defendant, who allegedly knew of her own omission in failing to remove plaintiff's IUD, did not tell plaintiff that the IUD was still implanted in her uterus. Plaintiff brought this suit several years later, following discovery of the problem.

As a general rule, the limitations period for a medical malpractice action in New York runs from the date of the last act constituting the basis of the claim, and not from the date of discovery of the resulting injury unless a “foreign object” has been left inside a patient's body, in which case the complainant has one year from the date of discovery or the date on which he or she should reasonably have discovered the problem. CPLR 214-a. On defendant's motion for summary judgment, the lower court held that the suit was timely because the IUD constituted a foreign object and plaintiff brought this action within 1 year of discovering its continued presence in her body. Defendant appealed.

The Appellate Division, Second Department, noted that the foreign object exception to the 3-year limitations period was legislatively enacted in 1975, several years after the conduct complained of, so the foreign object discovery rule should not have been applied to the plaintiffs' claims. In addition, an IUD, which is intentionally placed in a patient's body as a means of contraception, is a “fixation device” that does not qualify as a “foreign object” under New York law, and a fixation device cannot be deemed to be transformed into a foreign object when a physician negligently fails to remove it. Thus, the plaintiffs' malpractice claim accrued when the defendant allegedly failed to remove the IUD, not when the plaintiff discovered that it had not been removed.

However, where a physician fraudulently conceals his or her malpractice, and the patient's reliance on the physician's representations and advice prevents discovery of the malpractice, the doctrine of equitable estoppel may be invoked to preclude the physician from asserting the statute of limitations as an affirmative defense. Here, the plaintiff alleged that the defendant deceived her into believing that the IUD had been removed, and concealed her failure to remove the IUD when the plaintiff subsequently complained of abnormal menstrual cycles and an inability to conceive. Under these circumstances, where there remained disputed issues of fact regarding the alleged concealment, a grant of summary dismissal of the malpractice claim was inappropriate.