In performing independent medical examinations (IMEs), you as a physician are independent from both the organization requesting (and paying for) the exam and the patient receiving the exam. What you may not realize is that you establish a physician/patient relationship when performing an IME.
That relationship is as much a risk for medical professional liability as any other physician/patient relationship even though you are not the patient’s “treating physician.” Louisiana courts have established that the Medical Malpractice Act (Act 817) covers IMEs; nonetheless, I recommend taking some precautions as outlined below. Before performing an IME, obtain a signed agreement from the organization requesting the IME that clearly states the following:
- The organization will compensate you for the IME;
- The organization will compensate you for time spent in any subsequent deposition taken, regardless of who takes it and regardless of whether the court awards a fee for deposition time;
- The same procedure will apply for court appearances;
- The specific amounts for the fees agreed to be paid; and
- That you will refund to the organization any fees you are awarded or you collect if the organization honors the other terms of this agreement.
If the organization refuses, ask yourself if performing the IME is worth the risk of lost time and increased liability.
Another consideration is appointment as an expert witness. Although your request may not be granted, ask the organization to have you appointed as an expert witness. This is worth requesting because physicians serving as expert witnesses have been granted immunity from suit. For immunity, clearly state in the written agreement that you are providing expert testimony in a proceeding and you fully assert all applicable state and federal privileges and immunities. With appointment as an expert witness and the signed agreement asserting all rights and entitlements under witness immunity doctrine, you are doing what you can to avoid being included in any subsequent lawsuit.
Another step some physicians have taken is to have the patient acknowledge in writing that he or she understands and agrees that the IME does not create a physician/patient relationship and that the IME’s sole purpose is to provide the physician’s opinion to the organization requesting it. However, this clause has not been tested in court.
Mr. Judice, senior partner of Judice & Adley in Lafayette, has extensive trial experience, especially with medical professional liability defense.