Attorneys often retain an expert witness to testify in multiple related cases. This can especially be true for medical experts. The reason is patent: while the specific parties may change, the science often does not. As a result, physicians will perform numerous independent medical examinations (“IMEs”) at the request of attorneys in order to evaluate alleged injuries, often in states where they are not licensed. This practice has become so routine that the legal issues raised by out-of-state IMEs are hardly given a second thought. But the potential risks are very real. Since medical or legal malpractice cannot be undone, a “wait-and-see” approach is both dangerous and costly. Attorneys and physicians must keep up with current state and federal law in order to safeguard against these risks.
I. WHAT IS AN IME?
IMEs are usually conducted in reference to a court-ordered physical or mental examination of a claimant. However, an IME could be considered “any health assessment conducted by a physician, not otherwise involved in the care or treatment of the patient.” In other words, it is usually not the patient who requests the IME physician’s services, and the patient is not seeking treatment from the IME physician. Rather, both are acting at the direction of a third party.
II. DOES AN IME CONSTITUTE THE “PRACTICE OF MEDICINE”?
The key issue concerning IMEs is whether performing the exam, in and of itself, constitutes the practice of medicine. The answer varies by state, so it is important for physicians and attorneys to be aware of the applicable law in the state where the IME will be performed. Some states consider IMEs to be the practice of medicine and require that IME physicians be licensed in the state where the exam is performed. In these states, if a physician, licensed in one state, performs an IME in another state where he or she is not licensed, the unauthorized practice of medicine has occurred.
In Ohio, for example, a physician who performs an IME without first obtaining the proper special activity license from the State of Ohio Medical Board has committed the unauthorized practice of medicine. While Ohio does not statutorily define whether an IME constitutes the practice of medicine, the Medical Board has taken the unpublished position that performing an IME does constitute the practice of medicine. According to one spokesperson, the practice of medicine has occurred when a physician conducts an examination by ‘putting hands’ on the patient.
Conversely, the Ohio Medical Board does not consider merely reviewing records and testifying as an expert witness to be the practice of medicine. Therefore, in Ohio, so long as the IME physician only examines patient records to develop and support medical conclusions given in testimony, lack of licensure is not a problem. However, if the IME physician intends to conduct an examination that requires physical contact, that physician must, at minimum, obtain a special activity license pursuant to Ohio statutory law. Again, licensure and “unauthorized practice” law will vary from state to state. Therefore, research, consultation and preparation are an absolute “must” for any attorney or physician involved in an IME.
III. POTENTIAL LIABILITY FOR PHYSICIANS AND ATTORNEYS.
Although an IME does not create the traditional doctor-patient relationship, physicians may still owe some legal duty to the examined person. If a duty exists, that person may sue the physician who performed the exam. The scope of any such duty varies by state and will depend on where the IME takes place. For instance, in Michigan, performing an IME creates a limited physician-patient relationship and the IME physician can be liable for causing physical harm during the course of the examination. Physicians must become educated and aware of these issues so that they can better protect themselves against potential lawsuits.
Whether an attorney is litigating a case where an IME is under consideration or a case based on a prior IME, or simply advising a client or expert witness on the status of applicable state law, careful research and counseling is essential. The potential consequences of sponsoring an inappropriate IME could be serious for the attorney’s client and retained expert, as well as for the individual attorney.
In particular, attorneys should be concerned about the risks inherent in out-of-state IMEs for purposes of expert testimony. For example, since an IME constitutes the practice of medicine in Ohio, only an IME physician licensed in Ohio may qualify as an expert for the purposes of litigation. The unauthorized practice of medicine is a proper basis to exclude the testimony of a non-licensed expert in Ohio -- regardless of the examiner’s other qualifications and expertise. The exclusion of such an expert’s testimony could lead to dismissal of a claim, eliminate a “causation” defense against a claim, or undermine a challenge to a plaintiff’s damages evidence. In short, ignorance of the law on these issues could prove expensive, not just to the client, but by also exposing the attorney to a subsequent legal malpractice action.