A man was injured in an automobile accident while riding in a car that was insured. Following the accident, the man notified the insurer that he sought personal injury protection (PIP) benefits available under the insurance policy to pay for medical expenses that resulted from the accident. The insurer engaged a medical services provider to arrange an independent medical examination (IME) of the man. The medical services provider notified the man and his lawyer in writing that the man was scheduled to undergo a “Physical Therapy Medical Evaluation” to be conducted by an examiner with the credentials “DPT, OCS,” after his name, whom the notification characterized as the “Examining Physician.” The examiner was a licensed physical therapist, not a licensed medical doctor. The man attended the examination conducted by the physical therapist. The physical therapist prepared a report of the IME that indicated that he took the man’s history, physically examined him, and reviewed his medical records. The physical therapist’s report included his opinion of the extent of the man’s injuries.
The man sued the medical services provider alleging multiple violations of the PIP statute on behalf of himself and similarly situated persons. The putative class consisted of those injured in an automobile accident that sought PIP benefits, received a notice from this medical services provider of a scheduled IME to be conducted by a “physician” who was not actually a licensed medical doctor, and then attended an IME conducted by that person. The complaint alleged the medical services provider engaged in unfair or deceptive practices and invasion of privacy. The complaint alleged that the medical services provider’s IME notice letters, and the subsequent examination of the man, interfered with his privacy interests. The complaint alleged that the IME notice letters representing that the physical therapist was an examining physician intentionally deceived the man and led him to attend an IME conducted by the physical therapist who was not a licensed medical doctor. With regard to injury, the complaint alleged that the man was obliged to sacrifice his personal time to attend the IME; that the physical therapist touched the man during the IME without legal authorization to do so; and that the man divulged information to the physical therapist regarding his car accident, his injuries, and his personal health information during the IME.
The medical services provider moved to dismiss the complaint for failure to state a claim on which relief could be granted. The Superior Court Department dismissed the complaint. The trial court agreed with the man that the term “physician” as used in the PIP statute was limited to licensed medical doctors. However, the trial court dismissed the claim on the grounds that the man did not sufficiently allege a claim of invasion of privacy and also failed to allege an injury resulting from the medical services provider’s alleged unfair or deceptive practices.
The Supreme Judicial Court of Massachusetts affirmed but for different reasons. The court held that a licensed physical therapist was a “physician” authorized to conduct an IME under the PIP statute, the licensed physical therapist did not commit a tortious invasion of privacy by conducting the IME, and the medical services provider did not commit an unfair or deceptive business practice by sending a letter to the man stating that the licensed physical therapist conducting the IME was an “examining physician.”
A licensed physical therapist was a “physician” authorized to conduct an IME under the PIP statute. The PIP statute provided in part that an injured person claiming PIP benefits “shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required” in order “to assist in determining the amounts due.” G.L. c. 90, § 34M. The physical examinations the PIP statute referred to are IMEs. The court reasoned that, by definition, the word “physicians” included medical doctors and, more generally, those who engaged in the healing arts. The court concluded that the “physicians” authorized to conduct IMEs of PIP benefits claimants on behalf of automobile insurers, were not only licensed medical doctors but also other appropriate licensed or registered health care practitioners, including licensed physical therapists. The court reasoned that, if every IME were required to be performed by a licensed medical doctor, the achievement of the no-fault statutory goals of inexpensive, uncomplicated, and timely payment of benefits to cover medical expenses would suffer.
The licensed physical therapist did not commit a tortious invasion of privacy by conducting the IME. To sustain a claim for invasion of privacy, the invasion must be both unreasonable and substantial or serious. The PIP statute authorized the medical services provider, on behalf of the insurer, to require the man to undergo an IME conducted by a physical therapist to assist in determining the amounts due. Because the PIP statute authorized the examination, the invasions of privacy associated with the examination were justified.
The medical services provider did not commit an unfair or deceptive business practice by sending a letter to the man stating that the licensed physical therapist conducting the IME was an “examining physician.” The court held that the complaint failed to sufficiently allege actionable unfair or deceptive conduct on the part of the medical services provider. The notice letters accurately described the physical therapist’s qualifications. That the physical therapist was described as the examining physician did not render the notice letters unfair or deceptive, as opposed to somewhat confusing. The court reasoned that, even if the letter was actionably deceptive, the claim failed because the PIP statute did not require the IME to be performed by a licensed medical doctor.
The Supreme Judicial Court of Massachusetts affirmed the trial court’s dismissal of the complaint against the insurer.
See: Ortiz v. Examworks, Inc., 2014 WL 7930423 (Mass., March 3, 2015) (not designated for publication).
See also Medical Law Perspectives, June 2013 Report: Independent Medical Evaluations: Legal Risks and Responsibilities
See also Medical Law Perspectives, September 2013 Report: Physical Therapy: Rehabilitation Services and Liability Risks