Court-ruling-on-DME-doctor-liabilityMost people take it as a given that doctors are accountable for accurate, competent care of EVERY person whom they see in a professional capacity. It’s difficult to believe, but until just recently, there was a big exception to that standard.

It was VERY difficult to successfully sue doctors who conducted medical exams for the defense in no-fault, worker’s compensation and personal injury cases. Typically retained by insurance companies or patients’ employers, these physicians were protected from lawsuits because they did not have a “duty of care” to the patients they saw. This duty wasn’t established because these doctors have a fleeting interaction with patients – seeing them once to collect information for the defense.

That has all changed, however, due to a recent decision by the New York Appellate Court – a decision I found out about via attorney Eric Turkewitz’s New York Personal Injury Law Blog. In the post, “NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians,” Eric explains this important change – a set of court-established criteria that make these “Doctors for the Defense” accountable for any bad advice or poor care they give the patients they see.

As Eric  explains it, the New York’s Appellate Division First Department said that these doctors, can be sued if certain conditions exist. A court panel  unanimously set these rules, based on the case Badalto v. Rosenberg:

“In the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment.”

The three conditions set forth by the court are:

1. that the advice was incorrect,

2. that it was foreseeable that the plaintiff would rely on the advice, and

3. that the plaintiff detrimentally relied on the advice.

As an experienced personal injury attorney, Eric not only does a great job of explaining the qualifications demanded to make a case – but the consequences for personal injury law in general. This ruling gives a new protection to plaintiffs – and undermines the practice of quick, shallow medical exams for the defense.

To quote from Eric’s New York Personal Injury Blog posting on the subject:

“All those 5-10 minute quickie exams done by doctors on behalf of insurance companies may now subject those doctors to liability. If a doctor is going to cut off benefits, s/he will now have to write that the worker can go back to work, but also write that the worker shouldn’t actually rely on this opinion. The physicians will have to write, essentially, that their opinions are actually worthless and should not be relied upon. If an injured party shouldn’t rely on it, why should a judge or jury?”

Accountability. Standards. Informed opinions. Should anything less be expected of doctors – for any exam?

Thanks again to Eric Turkewitz for blogging about this and other important developments in personal injury law.


James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
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