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NY Independent Medical Examiners (IME's) and Fuctional Capacity Evaluators (FCE's) Subject to Medical Malpractice Lawsuits on Disability Claims

Wednesday, July 1, 2009

How many times has one of your clients told you the IME or FCE physically hurt them during the course of a so called "independent medical exam" or "functional capacity exam"?  What if the injury is permanent?  Can they sue the IME doctor or physical therapist for medical malpractice?

According to a sharply divided NY Court of Appeals, the answer is "Yes".  On June 24, 2009, the Court in Bazakos v. Lewis, 209 NY Slip Op 05199, the majority ruled that the claim of the plaintiff was that the doctor “breached his duty "to perform the examination in a manner not to cause physical harm to the examine." and found a "limited doctor-patient relationship" between the examiner and the claimant. 

New Chief Judge Jonathan Lippman was almost apoplectic in a strongly worded dissent. The dissent argued that there was no medical treatment provided by the defendant because none was intended nor was any provided. The examination was a “disclosure device in litigation” and that the benefit was not for the plaintiff but in fact for the defendant in the underlying personal injury action. They added that the conduct of the defendant “during his examination … is not amenable to [a] description of medical malpractice within the meaning of CPLR §214-a.” Unfortunately, Judge Lipman forgets that "benefit for the defendant" ended up seriously inuring the claimant.

At the end of the day, what does this decision portend for the future of IME’s in workers’ comp and disability claims? First, their typical boilerplate statement at the end of their reports saying that the exam was performed, but their was no doctor /patient relationship, is now worthless. Second, far fewer IME’s will lay a hand on injured workers during an IME absent a full indemnification agreement  from the insurance carrier. Many others will quit the IME business in NY all together. Third, there is no reason this decision should not apply also to physical therapists who routinely do the more intrusive (and often unsafe) Functional Capacity Examinations (FCE) in long term disability claims  (our law firm does not allow our clients to attend FCE exams). Finally, IME and PT medical malpractice rates will likely rise in New York given this new extension of liability.  

Given the scandalous expose on workers’ compensation IME fraud in the NY Times recently, this decision will hopefully curb some IME abuse.  Hit  the hacks where it hurts! 

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