Don't fall into these liability traps

Workers' comp exams and IMEs may expose you to negligence claims, even if there's no doctor-patient relationship.

By Berkeley Rice
Senior Editor

In an era of declining reimbursements, more doctors are supplementing their incomes—or are thinking about it—by doing workers' compensation or independent medical exams. What you may not realize is that both opportunities present special liability risks—even if there's no doctor-patient relationship with the people you examine. Consider the following two examples:

Rhonda James was working as a nurse's assistant at Heartland Hospital in St. Joseph, MO, in April 1998 when she was kicked in the neck and shoulder by a patient. After an exam at the hospital's ED, she was sent to an FP for treatment under the hospital's workers' compensation plan. When a consulting neurologist recommended a cranial MRI, the FP referred James to Michael Poppa, an occupational medicine specialist, for a second opinion.

Based on his exam, Poppa concluded that James needed no further treatment or medication and could return to work with no restrictions. Relying on Poppa's recommendations, the hospital told James that it wouldn't authorize further treatment, and ordered her to resume full-time work without restrictions.

Three days after returning to work, James suffered a relapse. She subsequently underwent extensive medical and psychological treatment, including hospitalization. She was diagnosed with reflex sympathetic dystrophy syndrome, a permanent condition. James sued Poppa for negligence, alleging that his "improper and inappropriate" opinions were responsible for her relapse and condition.

Poppa moved for dismissal, arguing that James' claim came under the exclusive jurisdiction of the state's Workers' Compensation Law, and that he was therefore "immune" from a malpractice suit. The trial judge agreed and dismissed the claim. James appealed, arguing that the workers' comp law doesn't bar a malpractice claim against a physician who aggravates a compensable injury.

Last year, a state appellate court sided with James, reversing the judge's dismissal and reinstating her suit. That decision was later upheld by the Missouri Supreme Court, and the case is now headed for trial. According to the appellate court, Missouri's Workers' Compensation Law permits civil actions against "third parties" who are liable for an injury to the employee. (The court defined third party as one who does not have a "servant/master relationship" with the employer.) For the appellate judges, the central issue was whether Poppa was such a third party, as James claimed. The judges ruled that he was.