Get an Expert: Injury During an IME is Medical Malpractice
posted on July 25th, 2009 in Summary Judgment, Experts, IME, physician-patient relationship by clintWhat happens if your client is injured in the course of an IME? Is it a medical malpractice action or an ordinary negligence action? This question is dispositive if you do not have an expert, and you will lose. In Gentry v. Wagner, 2009 WL 1910959 (Tenn.Ct.App.), Mr. Gentry was in a car accident in which he injured his neck and lower back. As part of a tort action brought by Mr. Gentry, he was ordered to submit to an IME by Dr. Wagner, a neurologist. Mr. Gentry filed suit against Dr. Wagner because he was injured during the IME. According to Mr. Gentry’s complaint, Dr. Wagner injured him during the course of the medical exam by over-extending his injured neck and back beyond the range of motions he was physically able to endure. Mr. Gentry alleged negligence against Dr. Wagner. Shortly thereafter, Dr. Wagner filed a motion for summary judgment supported by his own affidavit stating that he complied with the recognized standard of acceptable professional practice. Mr. Gentry responded that he had no patient-physician relationship with Dr. Wagner. The trial court granted Dr. Wagner’s motion for summary judgment on the basis that Mr. Gentry had failed to produce expert testimony to prove a deviation from the applicable standard of care. On appeal, Mr. Gentry argued that because there was no physician-patient relationship between he and Dr. Wagner, his cause of action was for ordinary negligence, not medical malpractice. This was an issue of first impression in Tennessee.
The Court of Appeals began its analysis by examining the allegations in Mr. Gentry’s complaint, which involved negligent acts during Dr. Wagner’s exam. As a result, this case implicated the examining physician’s duty not to injure the examinee in the course of the examination. This is a duty generally recognized in other states. While the courts generally agree that an examining physician has a duty not to injure the examinee during the examination, the analysis used by the courts to describe the nature of this duty varied. In one group of cases, the courts declined to find any physician-patient relationship when the examinee is ordered by an insurance company, employer, or court to submit to the examination. In the other group of cases, the courts recognized a limited physician-patient relationship arising in the context of an IME. The Court of Appeals found the latter approach to be more consistent with Tennessee law.
The Supreme Court has applied the following standard when distinguishing between ordinary negligence and medical malpractice:
When a claim alleges negligent conduct which constitutes or bears a substantial relationship to the rendition of medical treatment by a medical professional, the medical malpractice statute is applicable. Gunter v. Lab. Corp. of Am., 121 S.W.3d 636, 641 (Tenn.2003).
Gunter did not address Mr. Gentry’s case directly. However, where a physician performs an IME in a personal injury case, there is a willingness under Tennessee law to imply a physician-patient relationship. In order to find a duty not to injure the examinee, it makes sense to imply a limited physician-patient relationship. Based upon the Gunter analysis, it could be argued that this was not a medical malpractice case because Dr. Wagner did not “treat” Mr. Gentry. However, Dr. Wagner did affirmatively undertake to diagnose the medical condition of Mr. Gentry. Consequently, an implied physician-patient relationship existed between Mr. Gentry and Dr. Wagner. The Court of Appeals found that Mr. Gentry’s case was a medical malpractice action governed by TENN.CODE ANN. § 29-26-115 et seq. Mr. Gentry needed an expert. Summary judgment was affirmed.
Gentry v. Wagner is a very narrow ruling. You probably will never see a case like this in your career. The lesson though is much broader. If your defendant is a healthcare provider and the charge is negligence in the performance of duty, then get an expert. Otherwise, suffer the consequences.