Brad Pistotnik Law
Abogado El Toro

Do I have to go to a court ordered independent medical evaluation in my car accident case and does the doctor have any duty to me not to harm me?

Do I have to go to a court ordered independent medical evaluation in my car accident case and does the doctor have any duty to me not to harm me?

Whenever people are hurt in car accidents, truck accidents, motorcycle accidents and other types of personal injury and bodily injury lawsuits the injured plaintiff often will ask me whether or not they have to go to the court ordered independent medical examination. As a lawyer, we have to tell the client that independent medical and psychiatric examinations are mandatory under F.R.C.P. 35 and under the Kansas equivalent of F.R.C.P. 35 which is known as K.S.A. 60-235.

A parallel question most often arises about the independent medical examination. The client will want to know whether or not the independent medical practitioner or doctor has any duty not to harm them. Alternatively, this raises the question of whether or not there is any patient-physician relationship to the client who was seen as a Court ordered IME.

In many jurisdictions, there is a limited patient-physician relationship that is created during an IME setting. In Kansas, the law is very clear that the doctor or physician who performs an IME must cause no harm to the patient. In the case of Smith v. Welch, 265 Kan. 868; 967 P.2d 727 (1998) a personal injury plaintiff was asked to submit to an IME for a cervical spine injury and the independent medical examination by a defense doctor to try and establish that the accident was not the cause of the neck injury. The doctor asked the female patient to disrobe exposing her breasts and the patient immediately crossed her arms placing her arms over her breasts. The doctor had her remove her arms and then fondled her nipples with his stethoscope. The lower trial court dismissed her claims for negligence, misrepresentation, assault, battery, invasion of privacy, outrage and violation of her right to informed consent. The Kansas Supreme Court reversed the lower court holding that a physician is obligated to his or her patient to use reasonable and ordinary care and diligence in the treatment of cases the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians. The court went on to hold that when performing an independent medical examination under K.S.A. 60-235 or one agreed to by the parties, examining physicians have a duty not to cause harm or injury to the person examined, to use reasonable and ordinary care and diligence in the examination undertaken, to use their best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians.

The Supreme Court of Kansas went on to hold that the duty of a physician not to injure the person being examined by the physician is not affected by the fact that the physician was employed by a third person (usually and insurance company for the defendant being sued) and no contractual relationship existed between the physician and the person being examined. A physician performing an independent medical examination is obligated to the person being examined to make a reasonable disclosure of pertinent facts within the physician’s knowledge relating to the proposed examination of the person being examined so that this person may make an intelligent decision to consent to the examination or to refuse the examination.

This ruling by the Kansas Supreme Court is consistent with the American Medical Association’s ethical standards and guides for independent medical examinations. The AMA Code of Medical Ethics Opinions on Patient-Physician Relationships Code of Medical Ethics and chapter one of that manual addresses opinions on patient-physician relationships. Under subchapter 1.1.1 of this manual the code states “the relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patient’s behalf, and to advocate for their patient’s welfare.” “In certain circumstances a limited patient-physician relationship may be created without the patient’s (or surrogates) agreement. . . When a physician examines the patient in the context of an independent medical examination, in keeping with ethics guidance, in such situations, a limited patient-physician relationship exists.” See AMA Principles of Medical Ethics: I, II, IV, VIII.

The same code of ethics requires that physicians can best contribute to a mutually respectful alliance with patients by serving as their patient’s advocates and by respecting patient’s rights. These include the right to courtesy, respect, dignity, and timely, responsive attention to his or her needs. The patient also has the right to be advised of any conflicts of interest that physician may have in respect to their care.

Under subchapter 1.1.7 on Physician Exercise of Conscience, physicians are expected to uphold the ethical norms of their profession, including fidelity to patients and respect for patient self-determination. Preserving opportunity for physicians to act (or to refrain from acting) in accordance with the dictates of conscience in a professional practice is important for preserving the integrity of the medical profession as well as the integrity of the individual physician, on which the patients and the public rely.

Subchapter 1.2.6 on Work-Related & Independent Medical Examinations in this AMA code states that physicians who are employed by businesses or insurance companies, or who provide medical examinations within the realm of specialty as independent contractors, to assess individuals health or disability face a conflict of duties. They have responsibilities to both the patient and of the employer or third party. Such industry-employed physicians or independent medical examiners establish limited patient-physician relationships. These include disclosing the nature of the relationship with the employer or third party and explaining that the physician is acting as an agent of the employer or third party who is usually an insurance company. These obligations require that doctor explain that the physician’s role in this context is to assess the patient’s health or disability independently and objectively. The physician is also ethically required to explain the differences between his practice and the traditional fiduciary role of the physician. Additionally, they are required to inform the patient about important incidental findings the physician discovers during the examination. When appropriate, the physician should suggest the patients he evaluates seek care from a qualified physician and, if requested, provide reasonable assistance in securing follow-up care.

The Canadian Medical Association has a commentary that was issued on March 4, 2016 that discusses a physician’s ethical and legal duties to a patient in an independent medical evaluation. See Ethics and Legalities Associated with Independent Medical Evaluations. CMAJ, March 45, 2014, 186(4). Key points stated in this commentary are that there is general agreement that independent medical evaluation physicians must maintain their duty to do no harm. Some Canadian Courts have held that independent medical evaluators have a responsibility to disclose to the examining person medical problems uncovered during the examination.

In the Annals of Internal Medicine there is an article entitled, American College of Physicians Ethics Manual, Seventh Edition. This publication discusses the fact that physicians have ethical and legal obligations, and the two may not be concordant. Physicians must develop and maintain an adequate knowledge of key components of the laws and regulations that affect their patients and practices. These principles include beneficience (the duty to promote good an act in the best interest of the patient) and nonmaleficence (the duty to do no harm to the patient). The American College of Physicians also known as the ACP and the Ethics Professionalism and Human Rights Committee EPHRC oversees development of the additions to the ACP Ethics Manual. This manual discusses the fact that the physician’s primary commitment must always be to the patient’s welfare and best interests, whether in preventing or treating illness or helping patients to cope with illness, disability and death. A sense of duty to the patient should take precedence over concern about compensation. In third-party evaluations a doctor performing a limited assessment of an individual in behalf of a third party, for example, as an industry-employed physician or an independent medical examiner, raises distinct ethical issues regarding the patient-physician relationship. The physician should disclose to the patient that an examination is being undertaken on behalf of a third party that therefore raises inherent conflicts of interest. The physician must exercise appropriate independent medical judgment, free from the influence of the third party; and inform the examining of the examination results and encourage her or him to see another physician if those results suggest the need for follow-up care.

The same manual discusses medicine and the law writing that in instances of conflict, the physician must decide whether to violate the law for the sake of what he or she considers the dictates of medical ethics. Such a violation may jeopardize the physician’s legal position or the legal rights of the patient.

Most jurisdictions have adopted one of the following rationales: an IME doctor owes the patient a limited duty. The AMA’s opinion that an IME creates a limited patient-physician relationship is a standard of medical ethics and required by the American Medical Association. In a traditional doctor-patient relationship, the physician owes the patient a continuing duty to monitor health and anticipate medical issues and needs. In contrast an independent medical examiner is only assessing the individuals health or injury at the time of the examination. The American Medical Association addressed the issue of an independent medical examination and concluded that when a physician is responsible for performing an isolated assessment of an individual’s health or disability for an employer, business, or insurer, a limited patient-physician relationship should be imposed. It is the AMA’s view that this limited relationship requires physicians to inform the patient of important health information and suggesting that the patient follow up with her own physician.

The AMA further noted that the health care provider must notify the examinee of irregularities and other significant health findings uncovered as a result of the physical including making sure that the patient comprehends the issue. The same law review article noted that the courts in Kansas have held that an IME doctor must not cause harm during the examination and must use the physician’s best judgment in treatment while relying on the skill and experience. See, Albany Law Review, A Guide to the Independent Medical Examination, Hodge, Thomas and Lacy, (2015).

Thus, the answer to the starting question about whether or not an injured plaintiff must attend an IME, is quite clearly yes. The answer to the second question about whether the physician doing an independent medical examination or IME owes any duty to the patient, the answer is once again, yes. The doctor is required not to cause any harm to the plaintiff that they are evaluating for an insurance company.

At Brad Pistotnik Law ® we see many insurance carriers using doctors who are paid to lie for the insurance industry and falsely find that there is no causal connection between the car accident and the injuries. Allstate routinely uses a doctor in the Salina area to do independent medical record reviews without even seeing the patient. This doctor then falsely states that the patient was not hurt from the car accident. The doctor makes a fortune by lying for the insurance carrier.

There is a doctor in Wichita, Kansas who routinely makes more than $1 million per year stating that the impact in a car accident was insufficient to cause the injuries. This particular doctor makes approximately $4,000 to $10,000 per evaluation and does enough of them per year to make $1 million a year in income from lying for the defense and making false testimony. There are many doctors like this across the United States. In many court systems these types of doctors are referred to as professional prostitutes who sell their testimony and opinion regardless of the accuracy for substantial sums of money.

At Brad Pistotnik Law ® the attorneys who work with The Bull Attorneys ® know who these doctors are. We know how to protect injured plaintiffs from having their whole life destroyed by a doctor selling an opinion for money who is lying. When you have a car accident, a semi accident, a truck accident, a motorcycle or other personal injury accident and you need a skilled trial attorney or lawyer who is knowledgeable in medicine and medical-legal issues related to the use of medical experts who lie for a living, you should contact Brad Pistotnik Law ® and The Bull Attorneys ®. We have offices in Garden City, Kansas and in Wichita, Kansas. We have 5 lawyers. Those 5 lawyers are Brad Pistotnik, Tony Atterbury, Jay Sizemore, Bill Barr and Corey Sucher. We can be reached at 316-684-4400. We can also be reached at 1-800-WIN-BULL or at 1-800-241-BRAD. We have free consultations and we are open 24/7. We do not use answering services. We actually have attorneys answer the phone night and day, on holidays and on weekends and at night. You can reach Brad Pistotnik on his cell phone at 316-706-5020 and you can reach Tony Atterbury on his cell phone at 316-617-9237.