Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice Justices
Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 5, 2004
MARQUIS DYER,
Plaintiff-Appellee,
v No. 123590
EDWARD P. TRACHTMAN, D.O.,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
In this case, plaintiff alleges that the defendant
physician negligently injured him while performing an
independent medical examination. The issue is whether
plaintiff has a cause of action in ordinary negligence or
in medical malpractice.
The Court of Appeals concluded that the cause is
grounded in ordinary negligence. We disagree and conclude
that it sounds in medical malpractice. Therefore, we
reverse the decision of the Court of Appeals, reinstate
plaintiff's medical malpractice claim, and remand this case
to the trial court for further proceedings.
I. Facts
Plaintiff alleged in an unrelated civil complaint that
he injured his left knee and right shoulder during a
physical altercation. Following the injury, he underwent
surgery to repair a tear in the superior labrum of his
right shoulder. During the course of discovery in the civil
action, the opposing party engaged defendant Edward
Trachtman, D.O., to perform an independent medical
examination (IME) of plaintiff.
Before the examination, plaintiff asserted, he told
defendant that surgery had been performed recently on his
shoulder.1 He also informed defendant that plaintiff's
surgeon had placed restrictions on the movement of
plaintiff's right arm and shoulder. Among these
restrictions was a caution to plaintiff to avoid lifting
the arm above forty-five degrees.
During the course of the examination, it is alleged,
defendant nonetheless forcefully rotated plaintiff's right
arm and shoulder ninety degrees, detaching the labrum from
the right shoulder. This required plaintiff to undergo
surgery to repair the new damage.
1
We assume the accuracy of plaintiff's assertions for
the purpose of this appeal.
2
Plaintiff's original complaint against defendant
alleged medical malpractice, among other claims. Defendant
moved for summary disposition and argued that the IME did
not give rise to a physician-patient relationship between
plaintiff and defendant. Defendant also argued that the
complaint’s remaining counts were nothing more than
restatements of the malpractice claim.
Plaintiff moved to amend the complaint to raise
additional claims, including ordinary negligence. The trial
court agreed with defendant that no physician-patient
relationship had been created and held that a claim of
medical malpractice could not be brought. Accordingly, it
granted defendant's motion. In addition, it denied
plaintiff's motion to amend the complaint, concluding that
amendment would be futile. Any count sounding in
negligence against the physician, it reasoned, would be a
claim of medical malpractice that would require a
physician-patient relationship.
On appeal, the Court of Appeals agreed with the trial
court that the absence of a physician-patient relationship
was fatal to plaintiff's malpractice claim. 255 Mich App
659, 662-663; 662 NW2d 60 (2003). However, the court then
determined that, without a physician-patient relationship,
plaintiff could still maintain a claim in ordinary
negligence. Id., 663-664. It remanded the case to allow
3
plaintiff to amend his complaint. In so doing, the Court
of Appeals recognized that a determination whether
negligence had occurred might require testimony about what
a reasonable physician might have done during a similar
IME. Id., 666 n 6.
We granted leave to appeal to consider the following
questions: (1) whether a physician may be held liable for
ordinary negligence in the performance of an IME; (2) if
so, whether expert testimony may be used to establish the
physician's duty in performing the IME; and (3) whether an
IME physician might have some limited professional duty,
short of the duty that would arise if a traditional
physician-patient relationship existed, that could support
a claim for medical malpractice. 468 Mich 943 (2003).
II. Standard of Review
Whether a defendant owes any duty to a plaintiff to
avoid negligent conduct is a question of law for the court
to resolve. Simko v Blake, 448 Mich 648, 655; 532 NW2d 842
(1995). "In determining whether to impose a duty, this
Court evaluates factors such as: the relationship of the
parties, the foreseeability of the harm, the burden on the
defendant, and the nature of the risk presented." Murdock
v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997), citing
Buczkowski v McKay, 441 Mich 96, 100; 490 NW2d 330 (1992).
Thus, a duty arises out of the existence of a relationship
4
“between the parties of such a character that social policy
justifies" its imposition. Prosser & Keeton, Torts (5th
ed), § 56, p 374. See also, Buczowski, supra, 100-101.
III. Physician-Patient Relationship
The Court of Appeals correctly recognized that this
Court has not yet directly determined what, if any,
relationship should be recognized between a physician
performing an IME and an examinee.2 Having reviewed
persuasive authority from other courts, we conclude that an
IME physician has a limited physician-patient relationship
with the examinee that gives rise to limited duties to
exercise professional care.
We agree with the decisions of other courts and of our
own Court of Appeals3 that the relationship is not the
traditional one. It is a limited relationship. It does
not involve the full panoply of the physician's typical
responsibilities to diagnose and treat the examinee for
medical conditions. The IME physician, acting at the
behest of a third party, is not liable to the examinee for
damages resulting from the conclusions the physician
reaches or reports. The limited relationship that we
2
Our decision is limited to the relationship between an
examinee and a physician who provides an IME but does not
treat the examinee.
3
See Rogers v Horvath, 65 Mich App 644, 647; 237 NW2d
595 (1975).
5
recognize imposes a duty on the IME physician to perform
the examination in a manner not to cause physical harm to
the examinee.
As correctly noted by the Court of Appeals, the duty
of care in a medical malpractice action has its basis in
the relationship between the physician and the patient.
See Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26,
45; 594 NW2d 455 (1999), citing Bronson v Sisters of Mercy
Health Corp, 175 Mich App 647, 652; 438 NW2d 276 (1989).
See also anno: Physician’s duties and liabilities to
person examined pursuant to physician’s contract with such
person’s prospective or actual employer or insurer, 10
ALR3d 1071; Greenberg v Perkins, 845 P2d 530, 534 (Colo,
1993). The Court of Appeals relied on its earlier case law
and cases from other jurisdictions to hold: "In an IME
context, there is no physician-patient relationship and
there can be no liability for professional negligence or
medical malpractice." 255 Mich 662, citing Rogers v
Horvath, 65 Mich App 644, 647; 237 NW2d 595 (1975). See
also 255 Mich 622 n 3.
A majority of courts recognizes that a traditional
physician-patient relationship does not exist in the
context of an IME setting. However, a growing number find
that the relationship does exist in some form. Moreover,
they conclude that it gives rise to particular professional
6
duties owed by the examining physician. See e.g.,
Greenberg, 845 P2d 534-535; Stanley v McCarver, 204 Ariz
339, 341-342; 63 P3d 1076 (2003); Reed v Bojarski, 166 NJ
89, 95-99; 764 A2d 433 (2001); 10 ALR3d 1071.
As aptly noted in Greenberg, the cases considering
malpractice liability in an IME setting "are remarkable for
the diversity of their analyses." Greenberg, 845 P2d 535.
The majority of jurisdictions has recognized that there is
no traditional physician-patient relationship in an IME
setting that would create a duty to properly diagnose or
treat abnormalities or conditions. See 10 ALR3d 1071;
Hafner v Beck, 185 Ariz 389, 391; 916 P2d 1105 (Ariz App,
1995); Felton v Schaeffer, 229 Cal App 3d 229, 238-239; 279
Cal Rptr 713 (1991); LoDico v Caputi, 129 AD2d 361, 362-
364; 517 NYS2d 640 (1987); Ervin v American Guardian Life
Assurance Co, 376 Pa Super 132, 135-136; 545 A2d 354
(1988); Martinez v Lewis, 969 P2d 213, 219 (Colo, 1998).
This seems appropriate. In the particularized setting
of an IME, the physician's goal is to gather information
for the examinee or a third party for use in employment or
related financial decisions. It is not to provide a
diagnosis or treatment of medical conditions.
In addition, the IME physician often examines the
patient under circumstances that are adversarial, such as
in the instant case. Thus, if the duties that arise in a
7
regular physician-patient relationship were imposed on the
IME physician, an unacceptable risk would exist. The
examinee, disagreeing with the diagnosis, could sue and
recover from the IME physician. Some courts have
explicitly recognized this risk. As stated in Hafner, 185
Ariz 391-392:
If an IME practitioner's evaluations,
opinions, and reports could lead not only to
vehement disagreement with and vigorous cross-
examination of the practitioner in the claims or
litigation process, but also to his or her
potential liability for negligence, the resulting
chilling effect could be severe. To permit such
an action by expanding the concept of duty in
this type of case would be, at best, ill-advised.
At worst, the fears expressed in Davis v Tirrell,
110 Misc 2d 889, 895-96; 443 NYS2d 136, 140 (Sup
Ct., 1981) may be realized:
“To permit such an action would make it
impossible to find any expert witness willing to
risk a lawsuit based on his testimony as to his
opinions and conclusions before any tribunal.
And such cause of action if permitted would lead
to an endless stream of litigation wherein
defeated litigants would seek to redeem loss of
the main action by suing to recover damages from
those witnesses whose adverse testimony might
have brought about the adverse result.”[4]
4
Also "[t]he general rule is that the
physician who is retained by a third party to
conduct an examination of another person and
report the results to the third party does not
enter into a physician-patient relationship with
the examinee and is not liable to the examinee
for any losses he suffers as a result of the
conclusions the physician reaches or reports."
[Ervin, 376 Pa Super 136 (citations omitted).]
8
Likewise, other courts, including our Court of
Appeals, have apparently recognized that the general duty
of diagnosis and treatment is inappropriate in the IME
setting given the purpose of the examination. See Rogers,
65 Mich App 646; Ervin, 376 Pa Super 139; Lee v New York,
162 AD2d 34, 35-38; 560 NYS2d 700 (1990).
As correctly noted by the Court of Appeals here,
however, the lack of a traditional physician-patient
relationship has not normally been used to absolve an IME
physician of all responsibility. Many cases recognize a
duty of the physician "to 'conduct the examination in a
manner not to cause harm to the person being examined.'"
Greenberg, supra 845 P2d 535, quoting Rand v Miller, 185 W
Va 705, 707; 408 SE2d 655 (1991). See also Mero v Sadoff,
31 Cal App 4th 1466, 1478; 37 Cal Rptr 2d 769 (1995);
Ramirez v Carreras, 10 SW3d 757, 760 (Tex App, 2000).
We find persuasive the cases that recognize a limited
physician-patient relationship. The limited relationship
imposes fewer duties on the examining physician than does a
traditional physician-patient relationship. But it still
requires that the examiner conduct the examination in such
a way as not to cause harm.
The patient is not in a traditional professional
relationship with the physician. Nonetheless, he places
his physical person in the hands of another who holds that
9
position solely because of his training and experience. The
recognition of a limited relationship preserves the
principle that the IME physician has undertaken limited
duties but that he has done so in a situation where he is
"expected to exercise reasonable care commensurate with his
experience and training." Reed, 166 NJ 106.
Moreover, the recognition that an IME physician does
have a limited professional relationship with the examinee
provides additional benefits to both the examiner and the
examinee. It obviates the necessity of attempting to
distinguish artificially between claims of malpractice by
an independent medical examiner and claims against other
physicians involving similar conduct.
For example, here the Court of Appeals, correctly
recognizing that defendant owed a duty to plaintiff absent
the traditional physician-patient relationship, categorized
the plaintiff's claim as one of ordinary negligence. It
may have sought to do so because it recognized earlier
courts' unwillingness to recognize a limited professional
relationship in similar situations. However, the actions
of defendant here more properly fit within the realm of
medical malpractice than ordinary negligence.
In general, where a professional relationship exists,
the differentiation between a medical malpractice claim and
an ordinary negligence claim depends on "whether the facts
10
allegedly raise issues that are within the common knowledge
and experience of the jury or, alternatively, raise
questions involving medical judgment." Dorris, 460 Mich 46
(citations omitted). See also Id., 49 (Kelly, J.,
concurring in part and dissenting in part).
In the case before us, defendant's examination of
plaintiff called upon defendant's professional judgment.
The facts plaintiff alleges indicate that defendant made
the medical decision to fully rotate plaintiff's arm to
examine its range of motion, despite the caution of
plaintiff's treating physician. Such allegations "raise
questions involving medical judgment." Dorris, supra, 460
Mich 46. They more properly fit within a medical
malpractice cause of action.5
IV. Conclusion
In making our determination, we have considered the
case law and the differentiation under Michigan law between
ordinary negligence and medical malpractice. We have
recognized a limited physician-patient relationship in the
5
This is not to say that an IME physician, like any
health professional, cannot be held liable for ordinary
negligence under other circumstances. For example, during
oral argument a question was raised regarding a scenario in
which an injury is caused when the IME physician overturns
a medicine cabinet onto the examinee. Here, however, the
injury and alleged negligence occurred during the
examination itself and were directly related to defendant's
exercise of his professional services. Hence, the facts
cause plaintiff’s claim to sound in medical malpractice.
11
IME setting. Our use of the word “limited” acknowledges
the lack of a traditional physician-patient relationship in
that setting. Also, it avoids creating an artificial
distinction between the acts of independent medical
examiners and other treating physicians.
If the IME physician's alleged negligence sounds in
malpractice, he will be able to avail himself of the
evidentiary protections the Legislature has granted to
physicians in other circumstances. See, e.g., MCL
600.2912b; MCL 600.2912d. At the same time, the ability to
forecast the type of action involved in the IME setting
will avoid, for future plaintiffs, the confusion that
occurred here.
In this case, the Court of Appeals correctly noted the
existence of a limited duty, notwithstanding the absence of
a traditional physician-patient relationship. Where the
Court of Appeals erred was in failing to recognize that the
duty arises from the examining physician's limited
professional relationship with the examinee. Contrary to
the ruling of the Court of Appeals, this relationship may
give rise to a claim for medical malpractice rather than
for ordinary negligence, as this Court has recognized the
distinction.
The limited relationship encompasses a duty by the
examiner to exercise care consistent with his professional
12
training and expertise so as not to cause physical harm by
negligently conducting the examination. Thus, we overrule
Rogers and its progeny to the extent that they are
inconsistent with this decision.
The judgment of the Court of Appeals is reversed,
plaintiff’s medical malpractice claim is reinstated, and
the case is remanded to the trial court for further
proceedings.
Marilyn Kelly
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
13