Limiting Professional Liabilityby Scott Einiger, Esq.
Limiting Professional Liability in Third Party Examinations
By following a few simple rules physicians in New York who perform examinations at the request of a third party (such as an Insurance Company, Employer or Workers Compensation Board) can greatly reduce Professional Liability exposure to the individual examined. Such examination does not establish a “physician-patient relationship” within the meaning of the law (which is a necessary element to establish an action for medical malpractice).
The cases consistently hold that the examining physician in the above instances will not be held liable for a misdiagnosis or an erroneous report to the third party. Rather the physician will be responsible only if (s)he causes an actual physical injury to the individual during the examination; Twitchell v. MacKay, 78 A.D.2d 125, 434 N.Y.S.2d 516 (4th Dept. 1980); or if (s)he gives negligent (although not required) medical advice to the individual which would then create a physician-patient relationship;(Hickey v. Travelers Ins. Co, 158 A.D.2d 112, 558 N.Y.S.2d 554 (2nd Dept. 1990); or if (s)he discovers an illness or disease of which the examinee should be advised of, in good conscience, for his safety;McKinney v. Bellevue Hosp., 183 A.D.2d 563, 584 N.Y.S.2d. 538 (1st Dept. 1992).
To demonstrate, in one case, a physician was retained to provide an expert opinion in a litigation before the Workers’ Compensation Board; to examine the plaintiff and then render a report concerning plaintiff’s degree of disability, if any. The physician submitted a written report that included his findings and his opinion that individual could return to work. The individual did not challenge the physician’s conclusion but instead sued him for failing to diagnose an existing (non apparent) brain-stem tumor which, plaintiff alleged, defendant should have discovered during the physical examination he conducted. The Appellate Division held that no malpractice claim could be maintained against the physician who examined the plaintiff at the request of the worker’s compensation carrier. LoDico v. Caputi, 129 A.D. 2d 361, 517 N.Y.S. 2d 640 (4th Dept. 1987).
• the examining physician injured the person during the examination
• actually offered some medical advice or treatment to the individual that goes beyond the scope of the third party examination (thus acting as a physician with an expectation of treatment by the individual) and/or
• the examining physician actually discovers an illness or disease which the individual should be advised about to protect them from subsequent harm, the courts consistently find no physician-patient relationship (which then prevents a malpractice recovery).
A good practice for the examining physician to follow is to advise the individual both verbally and in writing that the examination is for a limited purpose, is not being undertaken to diagnose or treat their medical conditions (if any), that no physician/patient relationship is being created or intended, that they should see their own physician for their treatment needs and that ultimately the examination results will be forwarded to a third party (Employer, Insurance carrier, Workers Compensation Board etc.).
Since a physician can ultimately be responsible for unauthorized disclosure/ of medical information without the individuals authorization, a written consent form should be completed by the examinee authorizing the physician to release the medical information or report to the third party (See CPLR 4504), Tighe v. Ginsberg, 146 A.D.2d 268, 540 N.Y.S.2d 99 (4th Dept. 1989).