Many people do not understand how the legal system works when it comes to an injury sustained in a car accident, or while on-the-job. “The system clearly favors the insurance companies,” said Syracuse personal injury lawyer Michael A. Bottar, Esq., of Bottar Leone, PLLC. “But the Baldato decision begins to level the playing field.”
New York has a “No-Fault” law which pays for lost wages and medical bills following a car accident. However, in order to receive the benefits, an injured person must do everything the No-Fault insurer says. One of the requirements will be to attend an independent medical examination, also known as an IME. At the IME, a doctor selected by the insurance company will see the injured person, usually for 15-20 minutes, and then generate a report. In almost all circumstances, the IME report will provide that there is nothing wrong with the person. No-Fault benefits then terminate (i.e., instant financial savings). A similar process exists under New York’s workers compensation law. If a worker is injured on-the-job, they are entitled to lost wages and medical care provided they follow the directions of the Workers Compensation insurance carrier. One of the requirements will be to attend an IME. As is the case with No-Fault, often the IME report will provide that there is nothing wrong with the person. Workers Compensation benefits then terminate.
Until recently, you could not file a New York medical malpractice lawsuit against the IME doctor for incorrect advice, e.g., that the injured person is not hurt, has no disability and/or is fit to return to work, because of the absence of a “doctor-patient” relationship. This is no longer the case.
Following the First Department’s decision in Baldato v. Rosenberg, an IME doctor can be sued for medical malpractice if: (1) s/he gives incorrect advice, (2) it was foreseeable that the person would rely upon the advice, and (3) reliance on the advice causes harm. By way of example, if an IME doctor opines that an injury to a person’s lumbar spine has healed and the person has no physical limitations that prevent return to work, the person will return to work (because the IME report will lead to a termination of benefits). If the person suffers a debilitating injury lifting a heavy object (that they should not have been lifting), the IME doctor may be liable for medical malpractice.
To avoid medical malpractice liability, an IME doctor will have to talk out of both sides of his/her mouth. Reports will now have to say that the person can go back to work, but also that the person should not rely upon the contents of the report. Translation: the IME doctor’s opinion is not worth the price of the paper it’s written on.
Nota bene: IME doctors…we will be watching.