Ortiz v. Examworks, Inc.
26 N.E.3d 165
Mass.2015Background
- Ortiz was injured in a 2011 car accident and sought PIP benefits from his insurer; the insurer engaged Examworks to schedule an independent medical examination (IME).
- Examworks scheduled Ortiz for a "Physical Therapy Medical Evaluation" conducted by Eugene R. Boeglin, DPT, OCS, and labeled Boeglin the "Examining Physician." Boeglin was a licensed physical therapist, not a medical doctor under G. L. c. 112, § 2.
- Ortiz attended the IME; Boeglin examined him and issued a report assessing Ortiz's injuries.
- Ortiz sent a G. L. c. 93A demand asserting deception (use of the word "physician") and invasion of privacy (and alleged violation of G. L. c. 112, § 8A). He later sued Examworks (putative class action) alleging violations of c. 112, § 8A, c. 93A §§ 2 and 9, and c. 214, § 1B, and seeking declaratory, equitable relief, and damages.
- The Superior Court dismissed the complaint under Mass. R. Civ. P. 12(b)(6); the SJC transferred and reviewed whether "physicians" in G. L. c. 90, § 34M (third paragraph) means only medical doctors or also licensed nonphysician practitioners, and whether Ortiz pleaded viable c. 214 § 1B and c. 93A claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "physicians" in G. L. c. 90, § 34M, third par., is limited to medical doctors licensed under G. L. c. 112, § 2 | Ortiz: "physicians" means only MDs; IMEs must be by licensed medical doctors | Examworks: "physicians" includes appropriate licensed health‑care practitioners (e.g., PTs) | Court: "physicians" includes medical doctors and other licensed/registered health‑care practitioners (e.g., physical therapists) because that reading best serves § 34M's purpose |
| Whether Ortiz stated an invasion of privacy claim under G. L. c. 214, § 1B | Ortiz: IME and misleading notice invaded privacy; unwanted touching and disclosure caused harm | Examworks: IME was authorized by § 34M and served a legitimate business purpose | Court: No actionable privacy invasion—examination was authorized and not an unreasonable/substantial interference |
| Whether the IME notice that called a non‑MD an "Examining Physician" violated G. L. c. 93A §§ 2 and 9 | Ortiz: Notice was deceptive and violated c. 93A and c. 112 § 8A by implying Boeglin was an MD | Examworks: Notice accurately identified Boeglin as a DPT/OCS and as the examining clinician; any confusion was not unfair/deceptive | Court: No viable c. 93A claim—letters accurately described credentials and § 34M does not require MDs for IMEs |
| Whether a non‑insurer (Examworks) can be liable under c. 93A for alleged § 34M violations | Ortiz: Examworks' conduct supports a c. 93A claim | Examworks: Liability not established; pleading insufficient | Court: Assumed arguendo such claims could be raised but held Ortiz failed to plead actionable unfair/deceptive conduct |
Key Cases Cited
- Fascione v. CNA Ins. Cos., 435 Mass. 88 (court describes § 34M as a critical part of no‑fault scheme)
- Flanagan v. Liberty Mut. Ins. Co., 383 Mass. 195 (no‑fault purpose and PIP context)
- Boone v. Commerce Ins. Co., 451 Mass. 192 (IME provisions and the "same profession" requirement analyzed)
- Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112 (statutory interpretation in PIP context)
- Mailhot v. Travelers Ins. Co., 375 Mass. 342 (courts harmonize statutory scheme gaps to effect legislative purpose)
- Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514 (privacy claim requires invasion that is unreasonable and substantial)
- Bratt v. International Bus. Machs. Corp., 392 Mass. 508 (legitimate business interests can render disclosure reasonable for § 1B)
- Gossels v. Fleet Nat'l Bank, 453 Mass. 366 (accurate statements are not deceptive under c. 93A)
- Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800 (practice of insurers using non‑MD practitioners for IMEs)