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Injury During IME was Malpractice (NY)

July 31, 2009

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The Court of Appeals recently weighed in on a case we wrote about in September, 2008. In <i>Bazakos v. Lewis,</i> the plaintiff had earlier sued a party for injuries sustained in an auto accident, and during the independent medical exam, claimed the physician injured him.
The trial court found this cause of action to be for medical malpractice and dismissed it based upon a 2 ½- year statute of limitations. The Appellate Division (Second Department) reversed, finding that the plaintiff's claim was properly brought as a negligence action because there was no physician-client relationship, and therefore held it was timely filed within the 3-year statute of limitations.
The Court of Appeals, however, reversed the Appellate Division, finding that the IME fell under the purview of medical malpractice. The body manipulation performed during Bazakos’ IME constituted “medical treatment by a licensed physician.” The IME itself created a limited physician-patient relationship, where the physician had the duty to perform the examination without causing physical harm to the examinee. As such, the claim was for medical malpractice and time-barred.
Thanks to Jung Lee for his contribution.
<a href="http://www.nycourts.gov/reporter/3dseries/2009/2009_05199.htm">http://www.nycourts.gov/reporter/3dseries/2009/2009_05199.htm</a>

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