Virginia plaintiffs can sue over court-ordered medical exams.

The Virginia Supreme Court has ruled that a plaintiff who must undergo a court-ordered medical examination in the course of litigation can sue the doctor who performs it for malpractice if the plaintiff is harmed during the exam. The case involved a negligence claim brought by a brain-injured woman against the psychologist who examined her in an auto case. (Harris v. Kreutzer, 624 S.E.2d 24 (Va. 2006).)

After Nancy Harris was injured by the defendant driver in a car crash, the trial court granted the defendant's request that Harris undergo a so-called independent medical exam (IME)--under Virginia Supreme Court Rule 4:10--to determine the nature and extent of her claimed brain injury.

The defendant retained Jeffrey Kreutzer, a licensed clinical psychologist with a subspecialty in neuropsychology, to perform the exam. After the exam, Harris filed a motion for judgment, charging Kreutzer with medical malpractice, defamation, and intentional infliction of emotional distress. She alleged that Kreutzer "verbally abused [her], raised his voice to her, caused her to break down into tears in his office, stated she was 'putting on a show,' and accused her of being a faker and malingerer."

The trial court granted the doctor's demurrer and dismissed Harris's motion, but the state supreme court reversed in part. It allowed the demurrer to stand for the defamation charge and affirmed the trial court's dismissal of the claim for intentional infliction of emotional distress, saying that Harris had failed to allege facts sufficient to meet the state's standard for "outrageous and intolerable conduct."

However, the court for the first time recognized a cause of action for negligent performance of a mental and physical examination of a party under Rule 4:10.

In addition to the brain injury from the accident, Harris had a medical history of psychiatric problems, including thoughts of suicide; had been a victim of armed robberies; and suffered posttraumatic stress disorder. She claimed that the doctor owed her a duty to exercise reasonable care and to avoid causing her harm in conducting the exam. She said Kreutzer knew of her preexisting mental and emotional conditions and knew that she would be susceptible to further harm if treated abusively during the exam.

She said the doctor "intentionally aggravated her preexisting condition and her posttraumatic stress disorder and brain injury." As a result, Harris claimed, her mental and physical health "drastically deteriorate[d]."

The Virginia Supreme Court found that the trial court erred in dismissing the malpractice claim. The doctor "owed a duty to Harris to conduct the examination in a manner not to cause [her] harm," and Harris alleged sufficient facts that Kreutzer "had breached that duty, that he breached the standard of care, and that Harris suffered damage as a result," the court concluded.

The doctor argued that the malpractice claim "must fail as a matter of law" because a cause of action for malpractice requires a consensual physician/patient relationship, which did not exist because a court-ordered exam "is by its very nature adversarial." Therefore, Kreutzer argued, he owed no duty to Harris.

The court agreed that a Rule 4:10 exam doesn't involve a "traditional physician/patient relationship." However, it found that in the exam, "the consensual nature of the physician/patient relationship may be 'express or implied." It found Harris's consent was implied by virtue of her filing the suit, and it said a doctor who performs a court-ordered exam "expressly consents to a relationship with the examinee when he agrees to conduct the examination."

"Even when it's a court-ordered exam, [the plaintiff] has only two choices: one, consent to the exam, or two, don't--and run the risk of having the case dismissed," said Harris's attorney, Stephen Smith of Hampton, Virginia. "Once they've consented to the exam, then a consensual relationship exists, even though it's adversarial in nature, and there's an implied contract between the doctor and the patient being examined. That creates doctor/patient privilege. ... Then it comes down to the basic Hippocratic Oath--to do no harm."

The court said the plain language of the malpractice statute provided a cause of action with a "very limited" scope. The patient and IME physician are in a "strictly circumscribed" relationship, in which the doctor's only duty is to do no harm in the conduct of the exam.

"The recognition of a limited relationship preserves the principle that the IME physician has undertaken limited duties but that he has done so in a situation where he is 'expected to exercise reasonable care commensurate with his experience and training,'" the court said.

The decision "provides the simple right that when someone is forced into an exam, they still have a cause of action," said Smith. "All this case does is level the playing field so the defense medical examiners are held to the same standards as any treating physician."