The Supreme Court of the State of Utah (“Utah Supreme Court”) held in its opinion filed on August 5, 2021: “The aftermath of a vehicle accident that left appellant, Jeremy Kirk, with numerous injuries leads us to contemplate whether a physician performing an independent medical examination (IME) owes a duty of care to an examinee. We decline Kirk‘s invitation to announce such a broad and uncompromising duty, basing our decision primarily on important policy considerations relevant to the duty analysis. As such, we affirm the district court‘s grant of appellees‘ motion to dismiss.”
The Utah Supreme Court explained that “an IME of an allegedly injured employee for workers‘ compensation purposes is, generally speaking, not performed for the purpose of providing treatment. Rather, the purpose of an IME, in the workers‘ compensation setting, is to provide the carrier, and potentially the relevant fact finder, with independent information on the claimant‘s injuries … we decline to find a duty where, as here, the harms allegedly caused by the health care provider in providing an IME flow from a delay in proceedings.”
The Utah Supreme Curt further explained: “in addition to treatment, there must be an express or implied contract to provide health care between the parties … in determining whether a defendant owes a duty to a plaintiff, we consider: (1) whether the defendant‘s allegedly tortious conduct consists of an affirmative act or merely an omission; (2) the legal relationship of the parties; (3) the foreseeability or likelihood of injury; (4) public policy as to which party can best bear the loss occasioned by the injury; and (5) other general policy considerations.”
“[T]he purpose of an IME in the workers‘ compensation context is to identify injuries caused by work-related accidents to determine benefits owed. An IME, in other words, is just one step in the workers‘ compensation process, a process that contains its own safeguards against delays in payment of benefits … an independent medical examiner has a contractual relationship with the entity that employs them but no preexisting relationship with the subject of the examination. And this contractual relationship is often independent of, if not adverse to, the subject‘s relationship with the examiner‘s employer. To impose a categorical duty of care running from the independent medical examiner to the subject would put the examiner in an untenable position, if not create an outright conflict of interest.”
“[W]e can safely say that an independent medical examiner who has otherwise conducted an IME in good faith and has met their standard of care has fulfilled their duty, regardless of whether the results were favorable to the insurer or to the IME subject. Thus, if we are to assume the facts before us favor a duty under the Jeffs ―plus factors, we nonetheless find that policy considerations favor no duty owed by an expert whose professional opinion causes a delay in legal proceedings. So, even if Anderson‘s IME report constituted an affirmative act with foreseeable harms, he is not liable for Kirk‘s injuries resulting from the delay in the workers‘ compensation proceedings.”
“Our overarching concern today is that there is no clear limiting principle that would prevent experts across the board from becoming liable when their professional opinions cause delays in proceedings … independent medical examiners do play a vital role in the overall administration of health care benefits and workers‘ compensation benefits. In these situations, the independent medical examiner offers an unbiased opinion assessing specifically whether the patient‘s work-related injury requires treatment, while the injured person‘s own health care provider is able to administer care without influence by insurance companies (thus preserving the provider‘s loyalty to the patient and the patient-provider trust dynamic)—patients enjoy unbiased care while the insurance companies still benefit from the opinions of medical professionals.”
“[T]he general public policy considerations that lead us to our conclusion are: (1) there is no limiting principle that would prevent the chilling of expert involvement in disputes if we were to accept Kirk‘s argument that health care providers owe a duty of care in performing IMEs; (2) experts play a crucial role in all manner of proceedings in providing unbiased expertise and preserving trust relationships; and (3) experts typically have no special relationship with the subject of their examination, analysis, or opinion, but rather a contractual relationship with their client.”
Source Kirk v. Anderson, 2021 UT 41.
If you or a loved one may have been injured (or worse) as a result of medical malpractice in Utah or in another U.S. state, you should promptly find a Utah medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical negligence case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.