Claims Against A Doctor For Alleged Negligence In Performing An Independent Medical Examination (IME) Are Claims For Malpractice, Governed By New York's Two Year, Six Month Statute Of Limitations
November, 2009
The New York Court of Appeals recently held in Bazakos v. Lewis, et al., 12 N.Y.3d 631, 911 N.E.2d 847 (2009), that an action for negligence against a physician who performed an Independent Medical Examination ("IME") in connection with a previously filed lawsuit is a claim for medical malpractice and, accordingly, is governed by New York's Civil Practice Law and Rules ("CPLR") § 214(a) which imposes a two year, six month statute of limitations.
Plaintiff Lewis Bazakos ("Bazakos") was also the plaintiff in a previously filed action arising out of an automobile accident. Bazakos was required, pursuant to N.Y. CPLR § 2121, to undergo a medical examination by a physician designated by the adverse party. The defendant in the prior action designated Defendant in this action, Dr. Philip Lewis, to perform the examination. Dr. Lewis examined Plaintiff on November 27, 2001. On October 15, 2004, approximately two years and eleven months after the examination was performed, Plaintiff commenced an action against Dr. Lewis, alleging that Dr. Lewis injured Plaintiff when he "took plaintiff's head in his hands and forcefully rotated it while simultaneously pulling." The trial court granted Dr. Lewis motion to dismiss on statute of limitations grounds, ruling that the action sounded in medical malpractice and was thus time barred pursuant to CPLR § 214-(a)'s two year, six month statute of limitations. The Appellate Division, Second Department, with two justices dissenting, reversed the trial court's decision, holding that because Dr. Lewis and Plaintiff did not have a physician-patient relationship, the action was not founded in medical malpractice and was therefore governed by the three year statute of limitations applicable to personal injury actions.
The Court of Appeals agreed with the dissenting justices in the Appellate Division and reversed, finding that because a "limited" physician-patient relationship existed between the examining physician in an IME and the person examined, the action therefore sounds in medical malpractice and is governed by the two year, six month statute of limitations. Id. at 633. The dissenting justices in the Appellate Division and the Court of Appeals relied upon a prior decision in the Fourth Department, Evangelista and Twitchell v. MacKay, 78 A.D.2d 125, 434 N.Y.S.2d 516 (4th Dep't 1980), in determining that such a "limited" physician-patient relationship existed between Plaintiff and Dr. Lewis. In so-ruling, the Court of Appeals confirmed that the relationship between a physician performing an IME and the person he is examining may fairly be called a "limited physician-patient relationship," as described in the American Medical Association opinion describing the ethical responsibilities of a physician performing an IME. See Counsel on Ethical and Judicial Affairs, American Medical Association, Code of Medical Ethics: Current Opinions, Opinion 10.03.
The Court of Appeals concluded that Plaintiff claimed in this action that Dr. Lewis breached his duty "to perform the examination in a manner not to cause physical harm to the examinee," and, accordingly, is a claim for medical malpractice governed by the two year, six month statute of limitations. Bazakos, at 635.
In a dissenting opinion, Chief Justice Lippman opined that although Dr. Lewis may have employed medical techniques in examining Plaintiff, it is plain that no medical treatment was intended or in fact provided. Id. at 635. Judge Lippman stated that the examination was conducted simply as a disclosure device in litigation and one whose benefit inured not to Plaintiff, but Plaintiff's adversary in that action. Id. at 637. Judge Lippman further opined that since there was no medical treatment rationale or application during the examination, Dr. Lewis' conduct should not be described as medical malpractice within the meaning of N.Y. C.P.L.R. § 214-a. Id. at 637. While Judge Lippman agreed with the majority that Dr. Lewis assumed a duty not to harm Plaintiff during the examination, any alleged breach of said duty does not sound in malpractice. Id. at 639. Judge Lippman concluded by advising that the majority opinion, in essence, creates an arbitrary exception for a group of practitioners who neither seek nor are entitled to the protection properly afforded and reserved to those physicians engaged in the delivery of medical care and treatment. Id. at 639.
Learning Point: While not all cases involving the alleged mistreatment of a person examined by a physician sounds in malpractice, the New York Court of Appeals has concluded that physicians performing an independent medical examination for the purpose of litigation are liable in malpractice for injuries allegedly sustained during the performance of the examination, despite the lack of a traditional physician-patient relationship between the doctor and the examinee. Physicians who perform independent medical examinations for the purposes of litigation should be mindful that the Court will consider their relationship to the examinee to be a limited physician-patient relationship, thus allowing the examinee to sue the physician for malpractice for injuries allegedly sustained during the examination. In addition, claims for injuries arising from an independent medical examination are governed by the two year, six month statute of limitations applicable to medical malpractice actions in New York.
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