On June 24, 2009 the New York State Court of Appeals decided a case involving the proper statute of limitations when a person seeks to sue a doctor who performed an Independent Medical Examination (IME) performed pursuant to CPLR §3121. The case was Bazakos v. Lewis, 2009 NY Slip Op 05199. The action was commenced two years and eleven months after the examination when the plaintiff alleged that he was injured by the IME during the examination. The case was brought as a regular negligence action rather than a medical malpractice action because at the time the suit was brought the two year six month statute of limitations for medical malpractice had already expired. In a 4-3 decision the Court held that the medical malpractice statute of limitations in CPLR §214-a is the appropriate statute of limitations and dismissed the suit as untimely.
In an opinion by Judge Robert Smith the majority stated that in an IME there is a limited doctor – patient relationship between the plaintiff and the IME. Although, the court found that there was logic to the plaintiff’s position it was of the opinion that to accept the plaintiff’s argument would create an arbitrary result. Judge Smith indicated that the claim brought by the plaintiff was a claim that the doctor failed to perform his task with the required specialized skill expected of a doctor.
The plaintiff claimed that the defendant injured him by manipulating a body part. The court stated that when the plaintiff was seen for the legally mandated examination the doctor was performing “medical treatment” and that the negligent performance of that treatment led to the injury and eventual law suit. The majority saw “no good reason” to treat the plaintiff in this any differently than a person who went to a doctor to be treated on a regular basis. The court went on to indicate that there is a limited physician – patient relationship between the plaintiff and a doctor performing an IME.
In the end the majority ruled that the claim of the plaintiff was that the doctor “breached his duty "to perform the examination in a manner not to cause physical harm to the examinee." That is a claim for medical malpractice, and it is governed by the 2 year, 6 month statute of limitations.”
In a stinging dissent Chief Judge Jonathan Lippman took a sharply different approach to the situation and would have affirmed the Appellate Division’s decision allowing the three year statute of limitations for a regular negligence action under CPLR §214(5). The dissent argued that there was no medical treatment provided by the defendant because none was intended nor was any provided. The examination was a “disclosure device in litigation” and that the benefit was not for the plaintiff but in fact for the defendant in the underlying personal injury action. They added that the conduct of the defendant “during his examination … is not amenable to [a] description of medical malpractice within the meaning of CPLR §214-a.”
The dissent added that allowing the two year six month statute of limitations to apply in this situation is not consistent with the intent of CPLR §214-a. The shortened statute of limitations for medical malpractice was “to address the threat to the health and welfare of New Yorkers posed by the "inability of health care providers to get malpractice insurance at reasonable rates" and to help assure that "the adequate delivery of health care services" would not be impaired (citation omitted).” The shorter statute of limitations in CPLR §214-a was not intended to afford protection to those doctors engaged in litigation support.
The dissent went on to add it makes sense to treat a doctor who is actively treating a person and another who is providing litigation support differently under the law. The risks facing a doctor treating an individual on a regular basis is clearly different than the risks involved for a doctor in a non-treating context. The defendant’s duty to the plaintiff was only to not harm him. “[H]e had no medical duty competently to diagnose, inform or, indeed, to treat the [plaintiff].”
The dissent was troubled by the majority’s acceptance of medical malpractice in the absence of medical treatment. It stated
[t]he majority must accept what it purports to reject, namely, that what will be malpractice in the context of ongoing medical treatment may not, no matter how glaring the breach, be malpractice in the context of an exam understood by the parties thereto to have no medical treatment objective. Indeed, most of what would be malpractice in the former context is not even actionable in the latter.
The dissent added that since the only duty the defendant owed to the plaintiff was to not harm him. The breach of that duty does not sound in medical malpractice but in negligence. The obligation of the doctor to the examinee to not harm the examinee is ordinary negligence. The examination, despite what it is called, is far from independent in the ordinary sense of the word and is paid for and controlled by the plaintiff’s adversary.
The dissent’s contempt for the majority can be seen in the penultimate paragraph of the dissent.
The cause of action the majority now recognizes for medical malpractice is not only still-born in this action, but, I will venture, will never possess viability as an actual claim for relief. I am confident that the majority has not the slightest intention to open the vistas of malpractice so wide as to actually permit such claims in the absence of anything cognizable as treatment. What is involved then is simply the arbitrary creation of an exception for a group of practitioners who, as a group, neither seek nor are entitled to the protection properly afforded and reserved to those engaged in the delivery of medical care and treatment.
Judge Smith was joined in the majority by Judges Ciparick, Graffeo and Read. Chief Judge Lippman was joined in the dissent by Judges Pigott and Jones.