MARQUIS DYER V EDWARD P TRACHTMAN
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Michigan Supreme Court
Lansing, Michigan 48909
Opinion
Chief Justice
Maura D. Corrigan
Justices
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
physician
case,
plaintiff
negligently
independent
medical
alleges
injured
him
examination.
that
while
The
the
defendant
performing
issue
is
an
whether
plaintiff has a cause of action in ordinary negligence or
in medical malpractice.
The
Court
of
Appeals
concluded
grounded in ordinary negligence.
that
it
sounds
in
medical
that
the
cause
is
We disagree and conclude
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
physical altercation.
and
right
shoulder
during
a
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
Trachtman,
opposing
D.O.,
party
to
engaged
perform
an
defendant
independent
Edward
medical
examination (IME) of plaintiff.
Before the examination, plaintiff asserted, he told
defendant that surgery had been performed recently on his
shoulder.1
surgeon
had
plaintiff's
He
also
placed
right
informed
defendant
restrictions
arm
and
on
shoulder.
that
the
plaintiff's
movement
Among
of
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.
complaint’s
remaining
Defendant also argued that the
counts
were
nothing
more
than
to
raise
restatements of the malpractice claim.
Plaintiff
moved
to
amend
the
complaint
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.
granted
defendant's
motion.
In
Accordingly, it
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.
659, 662-663; 662 NW2d 60 (2003).
255 Mich App
However, the court then
determined that, without a physician-patient relationship,
plaintiff
could
still
negligence. Id., 663-664.
maintain
a
claim
in
ordinary
It remanded the case to allow
3
plaintiff to amend his complaint.
In so doing, the Court
of
determination
Appeals
recognized
that
a
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.
II.
468 Mich 943 (2003).
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.
(1995).
Simko v Blake, 448 Mich 648, 655; 532 NW2d 842
"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.
ed), § 56, p 374.
Prosser
&
Keeton,
Torts
(5th
See also, Buczowski, supra, 100-101.
III. Physician-Patient Relationship
The Court of Appeals correctly recognized that this
Court
has
not
relationship
performing
yet
directly
should
an
be
IME
determined
recognized
and
between
examinee.2
an
what,
a
if
any,
physician
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
traditional one.
that
the
relationship
is
not
It is a limited relationship.
the
It does
not involve the full panoply of the physician's typical
responsibilities
medical
to
diagnose
conditions.
The
and
IME
treat
the
physician,
examinee
acting
at
for
the
behest of a third party, is not liable to the examinee for
damages
resulting
reaches
or
from
reports.
the
The
conclusions
limited
the
relationship
physician
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:
context,
there
is
no
physician-patient
"In an IME
relationship
and
there can be no liability for professional negligence or
medical
malpractice."
255
Mich
662,
citing
Rogers
Horvath, 65 Mich App 644, 647; 237 NW2d 595 (1975).
v
See
also 255 Mich 622 n 3.
A
majority
physician-patient
of
courts
recognizes
relationship
context of an IME setting.
does
that
not
a
traditional
exist
in
the
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, 362364; 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,
examinee,
recover
an
unacceptable
disagreeing
from
the
with
IME
the
risk
diagnosis,
physician.
explicitly recognized this risk.
would
Some
exist.
could
sue
courts
If
an
IME
practitioner's
evaluations,
opinions, and reports could lead not only to
vehement disagreement with and vigorous crossexamination 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]
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
and
have
As stated in Hafner, 185
Ariz 391-392:
4
The
Likewise,
other
courts,
including
our
Court
of
Appeals, have apparently recognized that the general duty
of
diagnosis
and
treatment
is
inappropriate
setting given the purpose of the examination.
in
the
IME
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
however,
the
noted
lack
of
by
a
the
Court
traditional
of
Appeals
here,
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
relationship with the physician.
traditional
professional
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
principle
of
that
a
the
limited
IME
relationship
physician
has
preserves
undertaken
the
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,
questions involving medical judgment."
(citations
omitted).
See
also
raise
Dorris, 460 Mich 46
Id.,
49
(Kelly,
J.,
concurring in part and dissenting in part).
In
the
plaintiff
case
called
before
upon
us,
defendant's
defendant's
examination
professional
of
judgment.
The facts plaintiff alleges indicate that defendant made
the medical decision to fully rotate plaintiff's arm to
examine
its
range
of
motion,
plaintiff's treating physician.
despite
the
caution
of
Such allegations "raise
questions involving medical judgment."
Dorris, supra, 460
Mich
within
46.
They
more
properly
fit
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.
distinction
Also,
between
it
the
avoids
acts
creating
of
an
artificial
independent
medical
examiners and other treating physicians.
If the IME physician's alleged negligence sounds in
malpractice,
he
evidentiary
physicians
will
be
protections
in
other
able
the
to
avail
Legislature
of
the
has
granted
to
See,
circumstances.
600.2912b; MCL 600.2912d.
himself
e.g.,
MCL
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
professional relationship with the examinee.
limited
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.
Rogers
and
its
progeny
to
the
Thus, we overrule
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
proceedings.
Marilyn Kelly
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
13
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