Monday, May 04, 2009
IME's and the doctor patient relationship
An IME or Independent Medical Examination is not a simple concept in Colorado. First, there is the Division Independent Medical Examination that is a very special exam permitted by workers compensation statute. Unless otherwise agreed the Division provides three doctors and the list is narrowed down to one who performs an exam and issues a report as required by the statute. It can often be very independent and may help provide more treatment or a higher permanent injury rating for the claimant then that provided by the doctor/clinic designated by the employer. In other words it often is a very effective tool to use to obtain more benefits for a claimant. There is an expense but it is almost always worth it provided it is set up properly. Second, there is the insurance IME where the insurance handpicks a doctor to examine the claimant and issue a report. That is far less likely to benefit the claimant and may even harm his interests. Such an IME may have no duty to the claimant as a doctor and even his report goes to the insurer. Some might call him a "hired gun" who helps the insurer. That may not be so but it does depend on who the doctor is and his history or repute in this area. Attorneys in the field do usually know that history or repute. Normally an insurer IME is to be viewed with suspicion but I do admit that some are quite decent. Also there are the claimant IME's where the claimant's counsel also wants the claimant examined by a doctor he trusts.
Aside from the different types of IME's I can say that in Colorado the insurer IME will seldom have any liability to a claimant. He may devastate the claimant's claim with his views but his duty is primarily to the insurer not the claimant. He may say the claimant doesn't need the surgery or has no case and he may even testify at a hearing to this effect in a contested case. One Colorado case on this is Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). But a recent Arizona case I received makes a point of saying, that at least in Arizona, there can be liability. That case involved a workers comp claimant that delayed his surgery in part because of an insurer IME and that was the wrong thing to do. I then looked into Colorado caselaw and I don't see Colorado always giving 100% immunity to the insurer IME. Anyone looking into this may not only want to review Colorado caselaw but perhaps also look elsewhere for insight. The Arizona case gives us a clue that perhaps the insurer IME is not as safe from a malpractice claim as has been thought.