Supreme Court Gutted the IME in Virginia?

Published on: 1/20/2006

Defense attorneys in personal injury cases in Virginia routinely call for evaluations of the physical and mental injury claims made by the plaintiff pursuant to the provisions of Rule 4:10 of the Rules of the Supreme Court of Virginia ("IME"). The defendant retains a physician to examine and evaluate the plaintiff and submit a report of his conclusions to the court. In a recent decision in the matter of Harris v. Kreutzer, the Virginia Supreme Court, in a case of first impression before it, may have dealt a serious blow to defendants seeking to use the IME to evaluate injury claims. This decision also extends medical malpractice liability in Virginia.

Nancy Harris claimed to have suffered traumatic brain injury in an automobile accident in 1991. She brought a personal injury action in 1992 seeking damages. The trial court granted the defendant's request that Harris undergo IME to determine the nature and extent of the claimed brain injury. The defendant hired Jeffrey S. Kreutzer, Ph.D., a licensed clinical psychologist with subspecialty in neuropsychology, to perform the examination and report his findings.

In February, 2003, Harris filed a lawsuit against Dr. Kreutzer, claiming, among other things, medical malpractice. Harris claimed that Dr. Kreutzer verbally abused her and accused her of being a "faker and malingerer", aggravating post-traumatic stress disorder and the brain injury she received in the accident. On Dr. Kreutzer's demurrer, the trial court dismissed this claim with prejudice, holding that, while there might be certain situations in which a claim of malpractice might be made in connection with IME, Harris' case was not such a situation.

On appeal by Harris, the Virginia Supreme Court held that a cause of action for medical malpractice exists for the negligent performance of IME. The court went through a detailed examination of the consensual relationship between the injured plaintiff and examining physician creating a very limited physician/patient relationship and found that the IME constitutes the provision of "Health care" by a physician to a patient under the Virginia Medical Malpractice Act. The Supreme Court was careful to point out that its decision limits Rule 4:10 malpractice liability solely to "harm in the actual conduct of the examination" and not for the outcome of the opinions reported by the physician. With this limitation, the Supreme Court's stated hope is that its decision will not have a chilling effect on the availability to defendants in personal injury cases of physicians willing to perform the Rule 4:10 IME. That, of course, may be wishful thinking, and the true impact of this decision remains to be seen.