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Independent Medical Examinations: An Expanding Source of Physician Liability

Ken Baum, MD, JD
[+] Article, Author, and Disclosure Information

From Wiggin and Dana LLP, New Haven, Connecticut.

Potential Financial Conflicts of Interest: None disclosed.

Requests for Single Reprints: Ken Baum, MD, JD, Wiggin and Dana LLP, 265 Church Street, New Haven, CT 06510; e-mail, kbaum@wiggin.com.

Ann Intern Med. 2005;142(12_Part_1):974-978. doi:10.7326/0003-4819-142-12_Part_1-200506210-00007
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Broadly defined, an independent medical examination (IME) is any health assessment conducted by a physician, not otherwise involved in the care or treatment of the patient, at the request of a third party that is not the physician's general employer. Most commonly, physicians conduct IMEs at the request of employers seeking to determine the health status of their employees, although the circumstances vary. Data are not available on the precise number of IMEs performed each year; however, given the vast number of employers and other interested third parties, it is safe to assume that they number in the tens of thousands, if not more. Yet few physicians appreciate the potential liability they incur as a result of such engagements. Many physicians believe that when they conduct examinations at the request of a hiring third party, as opposed to the patient, there is no physician–patient relationship and, hence, no potential malpractice liability. But as several courts have recently declared, it is not that simple.

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Re:Liability for IME doc's
Posted on February 9, 2012
Bruce G., Borkosky, psychologist
Independent Practice
Conflict of Interest: None Declared

What the authors are referring to is an expanding base of case law that opines 'if you add giving medical advice or treatment to the evaluation, then all those responsibilities to the patient (that you did not have when it was merely an evaluative relationship) come flying back in. I believe that's what they mean here - affirmative, as in, positive - giving of advice or treatment (as opposed to withhold advice or treatment). The case is numerous, and it is difficult to state with particularity what does, or does not, constitute treatment, because it is extremely dependent on the facts of each case. The authors are merely warning you that, if you start down that path, you can easily wind up in a treating relationship, with the concomitant responsibilities to the patient. Bruce Borkosky

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