ENTER THE WARRIOR: THE IME DOCTOR

Physicians performing medical examinations for workers compensation or disability benefits may not face urgent medical situations, but that doesn’t mean that the encounters are low-stress, either. Hostile, uncooperative patients are all too frequent. And that is before the claim is adjudged.

The Public Employees Retirement System asked Dr. O, an orthopedic surgeon, to conduct a comprehensive evaluation of a 49-year-old city worker who had performed heavy maintenance for 16 years. Just nine days prior to the exam, the plaintiff had undergone a nerve release surgery on her right forearm. During the examination, Dr. O removed the dressing of the recent surgery to evaluate the surgery area. He noted that the sutures were in place and that texture, hydration, hair quality and color of the area were normal.

In his report, Dr. O noted that the plaintiff had several claims pending with regard to past injuries on the job, and wrote that he “respectfully but whole-heartedly” disagreed with the assessments of the plaintiff’s surgical physician. Instead, Dr. O reported that after recovering from the arm surgery in several weeks, the plaintiff should be able to return to work.

Two weeks later, however, plaintiff returned to her surgical doctor who noted: “According to the patient’s statements, without her consent and without any linkage between the back examination and the unauthorized orthopedist’s removal of the operative dressings and splint, she suffered avulsion, trauma and exposure to contamination.” The surgeon noted a wound disruption and noted: “There has never been any call from this doctor’s office with a request to change this dressing and splint.”

In her subsequent lawsuit, plaintiff claimed she believed that Dr. O’s exam would be limited to her back. She claimed that Dr. O removed her bandages under protest and that she screamed in pain and began bleeding when Dr. O grabbed the injured arm in assisting her onto the examination table. The plaintiff alleged negligence and battery and claimed that her surgery for wound dehiscence six weeks after the exam was caused by Dr. O’s actions.

Shortly before trial, the plaintiff’s attorney agreed to move the lawsuit to arbitration. At the hearing, the plaintiff’s surgical physician testified that Dr. O’s removal of the wound dressing violated the standard of care and was against his wishes. On cross-examination of the surgeon, however, Dr. O’s attorney was able to show that plaintiff’s primary disability claim related to her arm and that the surgeon’s own practice was to change wound dressings on the ninth post-operative day – the same day as Dr. O’s exam.

Dr. O testified that his comprehensive exam required observation of the surgical site and that the exam concluded without incident. The arbitration adjourned and the panel quickly found in favor of Dr. O.

Because California law is very clear that persons undergoing independent medical examinations are not “patients” of the examining physician, lawsuits in this area are rarely successful. (That is why exam notes should not make statements indicating a patient relationship and why physicians should not offer the “Physician Patient Arbitration Agreement” to examinees.)

But because physical contact can lead to a claim of an injury, such contact should be limited to what the exam actually requires. Given the litigious backdrop of the exams, having an observer in the room when contact is required can help prevent claims.

Examiners should also be wary of the language used in their reports. The report should be thorough and detailed, but if your comments come across inflammatory, the next person in the examinee’s sights may be you.