Virginia Supreme Court's Recent Opinion Suggests Standards For IME, Claims

Published on: 2/09/2006

On January 13, 2006, the Supreme Court issued its opinion in the case of Harris v. Kreutzer, 2006 WL 68765 (Sup. Ct. Va., decided Jan. 13, 2006), regarding Independent Medical Examinations (IME's) in Virginia. We want you to understand this decision as it might impact handling claims and cases in the future.

The facts of the case are that Ms. Harris was examined by Dr. Kruetzer, a neuro-psychologist at the Medical College of Virginia. According to the plaintiff's allegations, during the examination, Dr. Kruetzer "verbally abused (Harris), raised his voice to her, caused her to break down into tears in his office, stated she was ‘putting on a show' and accused her of being a faker and malingerer." The plaintiff further alleged that Dr. Kruetzer intentionally aggravated her pre-existing condition. These allegations were set forth in a Motion for Judgment that contained three counts including medical malpractice, intentional infliction of emotional distress, and defamation. Dr. Kruetzer, through his attorneys, argued that he did not owe the plaintiff any duty of care and therefore could not be liable for any alleged injury. The trial court agreed and dismissed the case at the Demurrer stage, without hearing any evidence.

The Supreme Court in Harris, held, in a case of first impression, that an IME examination did establish a very limited physician-patient relationship. Due to the establishment of that relationship, the Court determined that an IME physician held a duty to the plaintiff, and therefore, could be liable under a theory of medical malpractice for negligently performing a court ordered examination.

The Court was careful in limiting the scope of its ruling. It was not the Court's intention to place constraints on an IME doctor's findings. The ruling clearly stated that a cause of action does not arise due to the IME doctor's findings or diagnosis. Perhaps most importantly, the Court clearly stated that "no liability may arise from (the doctor's) report or testimony regarding the examination."

The sole duty placed on the IME physician is to not injure the plaintiff during the course of the examination. The Court clearly stated that an IME doctor could be held liable if he breached the standard of care in performing an examination, and as a result, the patient was injured. The Court further noted that to allow more would deter physicians from performing IME's out of fear of legal ramifications. The Court explicitly stated that this was not its intention and that a medical expert would not be held liable for evaluations, opinions, and reports.

We think doctors should not be overly concerned about this ruling. Unless a physician intentionally injures a plaintiff or violates the standard of care and injures the plaintiff during the course of his examination, no valid claim can be made against the doctor under Harris v. Kruetzer.

In order to protect themselves from such actions, physicians performing IME's may employ video taping of examinations and/or recording of the examinations. Certainly having another witness present during the examination would be an excellent idea.

It may be appropriate to address this issue in the Virginia General Assembly in order to ensure that the limited nature of the physician-patient relationship in an IME setting is not misconstrued by trial courts. As the 2006 session is already underway, time is of the essence. Amending existing legislation to specifically limit the liability for an IME doctor in rendering an opinion for the purposes of litigation is one option. Possibly clarifying the term "patient," to exclude IME's is another. Potential legislative approaches would be best discussed with a professional lobbyist.



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