Utah Supreme Court Finds No Liability for IME Whose Opinion Delayed Benefits

An independent medical examiner owed no duty of care to an injured worker who alleged that his workers’ compensation claim was delayed because of the doctor’s alleged “misrepresentation,” the Utah Supreme Court ruled.

The high court on Thursday affirmed a ruling by the district court dismissing a lawsuit filed by Jeremy Kirk against Dr. Mark Anderson and Broadspire.

The court said in a 5-0 decision that there was no doctor-patient relationship between Kirk and his IME. Imposing liability on doctors whose opinions cause delays would have the effect of chilling the willingness of experts to provide unbiased opinions about the medical condition of workers’ compensation claimants, the court said.

“Today is a reminder of the powerful role public policy considerations can appropriately play in our judicial system,” the high court’s opinion says. “In cases such as this, it is our duty, as judges, to consider public policy to determine whether the societal cost of a legal intervention, such as tort liability, outweighs its social utility.”

Kirk was injured on April 16, 2015 when his vehicle was rear-ended while he was waiting at a stop light. He was acting in the course and scope his employment with Park City Plumbing at the time.

Kirk drove himself home after the accident, but visited a hospital the next day complaining that his “whole left side hurt.”

American National Property & Casualty was the plumbing company’s workers’ compensation insurer. Broadspire — through Genex Services LLC — was the third-party administrator that handled Kirk’s claim. Broadspirehired Anderson to conduct an independent medical examination, which Kirk underwent in October 2016.

Anderson reported that Kirk had suffered a transient cervical strain, but all of the symptoms that he continued to complain about were due to preexisting conditions. The report said Kirk suffered no permanent disability from the accident.

Kirk disagreed and filed an application for a hearing before the Utah Labor Commission. Three years after the injury, the commission found that Kirk had suffered a “left knee ACL tear, aggravation of preexisting spin degeneration, whiplash and a mild concussion.”

Kirk filed a lawsuit alleging negligence and reckless conduct by Anderson and vicarious liability by Broadspire. His suit said that because of Anderson’s “erroneous” report he suffered delayed payments for temporary disability, permanent disability and medical treatment.

The district court granted Broadspire’s motion to dismiss. Kirk appealed.

Kirk argued that independent medical examiners have a limited physician-patient relationship with the injured workers they examine. Alternatively, he argued that even absent a physician-patient relationship, the examiner owes a limited duty to the examinee.

The Supreme Court rejected the first argument in full. The court said the purpose of an IME is not to provide treatment, as Kirk contended, but to provide the insurer with independent information about the claimant’s injuries.

The high court agreed with Kirk that even if no doctor-patient relationship exists, non-patients are not categorically barred from seeking redress for malpractice committed by health care providers. That principle was decided in B.R. ex rel. Jeffs v. West, a 2012 decision, the court said.

However, the opinion says that the Jeffs decision does not apply to Kirk’s situation. The court said there is “no clear limiting principle” that would prevent other experts who testify in workers’ compensation proceedings, such as adjusters, from being held liable if they express opinions that delay the relief sought by claimants.

“We are deeply concerned that this liability would chill or suppress honest and unfettered expert opinions, which have significant societal value,” the court said.