Issue: June 2013
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Independent Medical Evaluations: Legal Risks and Responsibilities

Introduction

Liability Issues for Independent Medical Evaluations

Billions are paid out in workers’ compensation, social security, and disability benefits every year in the U.S. Insurance companies, government disability programs, employer-sponsored disability plans, and parties to litigation often find it necessary to request an independent medical evaluation (IME) or seek a court order granting an IME before starting or continuing to pay benefits.

 

Unlike the examination of a patient by a treating physician, an IME is limited in scope and performed for the purposes of the party or entity ordering it. The physician performing the IME may be found liable under several theories even when, it is argued, a traditional physician-patient relationship has not been established.

 

Attorneys, physicians, insurers, employers, and others who are involved in litigation concerning an IME must be aware of the types of lawsuits that may arise from an injury incurred during or associated with the IME, what strategies and techniques to employ, and what issues are critical to know.  


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim of injury resulting from an independent medical evaluation? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice and negligence be avoided for an injury resulting from an independent medical evaluation? And, what is a potential strategy for the physician to employ?

Insurers:

What strategy can an insurer employ to avoid payout under a professional liability policy for a health provider’s actions in performing a third-party medical evaluation? And, how can an insurer avoid liability related to an IME requested by the insurer? 

Employers:

Can an employer be subject to liability for an injury related to an independent medical evaluation? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for malpractice or negligence in performing an independent medical evaluation.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of malpractice or negligence involving the performance of independent medical evaluations.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of injury related to an independent medical evaluation.

Employers:

Use this checklist to determine if the employee’s injury leading to the IME is “work related” and occurred “in the course of the employment” or if an employee’s medical evaluation was ordered by the employer and resulted in injury.

Expert Analysis

Will Physician Liability for Extender Assessments, Including IMEs, Reduce the ACA’s Efficiency Gains?

Katherine L. Record, JD, MPH, MA

What Is a Physician’s Responsibility When Performing Third Party Medical Evaluations?

James Runke, MD

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

Reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial. 


Reasons to Go to Trial

Reasons why the attorney, physician, insurer, or employer would want to take the action to trial. 


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving independent medical evaluations? 



Medical Examples

Independent Medical Evaluations

This section discusses what are independent medical evaluations (IME), and includes information on the terminology used, the need for the examiner to understand the law governing these evaluations, assessment procedures, the IME report, and examiner certification.



Law and Medicine Resources

Law and Medicine Resources

Included is a listing of law and medical references for further information on independent medical evaluations.


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Independent Medical Evaluations: Legal Risks and Responsibilities

Table of Contents
Introduction

Expert Analysis
   Katherine L. Record, JD, MPH, MA
   James Runke, MD

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Independent Medical Evaluations

Law and Medicine Resources