Wе hold that a claim against a doctor for his alleged negligence in performing an independent medical examination (IME) is a claim for malpractice, governed by CPLR 214-a’s two-year-and-six-month statute of limitations.
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Lewis Bazakos, plaintiff in this case, was also the plaintiff in a previously-brought action arising out of an automobile accident. In that action, Bazakos was required, pursuant to CPLR 3121, to undergo an examination, commonly called an IME, by a doctor designated by the adverse party. The person Bazakos sued designated Dr. Philip Lewis, and Lewis examined Bazakos on November 27, 2001.
On October 15, 2004, approximately 2 years and 11 months later, Bazаkos commenced this action against Lewis. The complaint alleges that Lewis injured Bazakos during the IME when he “took plaintiff’s head in his hands and forcefully rotated it while simultaneously pulling.”
Lewis moved to dismiss the case as barred by the statute of limitations. Supreme Court granted the motion (
The Appellate Division granted Lewis leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative and reverse.
Bazakos’s argument, which the Appellate Division accepted, is a simple one: He says that medical malpractice is a breach of a doctor’s duty to provide his or her patient with medical care meeting a certain standard; that Lewis was not Bazakos’s doctor, and Bazakos was not Lewis’s patient; and that therefore the negligence of which Lewis is acсused cannot be medical malpractice. He points out that the relationship between the doctor and the person the doctor examines at an IME is essentially adversarial; the person examined is required by law to submit to a procedure performed for the benefit of a party seeking to defeat that person’s legal claim. The Appellate Division majority quoted the observation in Payette v Rockefeller Univ. (
There is some logic to Bazakos’s position, but the result he seeks would be an arbitrary one. Bazakos, like any medical malpractice plaintiff, claims he was injured because a doctor failed to perform competently a procedure requiring the doctor’s specialized skill; Lewis, like any medical malpractice defendant, is called upon to defend his performance of professional duties. This case is not like Payette, in which a volunteer participant in a diet study at Rockefeller University complained of the University’s “alleged negligent creation and implementation of its diet research program” (
CPLR 214-a, creating a statute of limitations for certain forms of professional malpractice that is six months shorter than the ordinary personal injury statute, was part of a package of legislation passed in 1975 in response “to a crisis in the medical profession posed by the withdrawal and threatened withdrawal of insurance companies from the malpractice insurance market” (Bleiler,
We agree with the dissenting Justices at the Appellate Division that the relationship between a doctor performing an IME and the person he is examining may fairly be called a “limited physician-patient relationship”—indeed, this language is used in an American Medical Association opinion describing the ethical responsibilities of a doctor performing an IME (AMA Council on Ethical and Judicial Affairs, Code of Medical Ethics, Ops on Patient-Physician Privilege E-10.03). As the Michigan Supreme Court has explained, this relationship:
“is not the traditional one. It is a limited relationship. It does not involve the full panoply of the physician’s typical responsibilities to diagnose and treаt the examinee for medical conditions. The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports. The limited relationship that we recognize imposes a duty on the IME physician to perform the examination in a manner not to cause physical harm to the examinee.” (Dyer v Trachtman,470 Mich 45 , 49-50,679 NW2d 311 , 314-315 [2004].)
Bazakos’s claim here is that Lewis 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 two-year-and-six-month statute of limitations. Thеrefore, Bazakos’s lawsuit was not timely.
Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court reinstated and the certified question answered in the negative.
Chief Judge Lippman (dissenting). During a physical exam compelled by the court upon the application of plаintiffs adversary in separate personal injury litigation (see CPLR 3102 [a]; 22 NYCRR 202.17), defendant Dr. Lewis, the examiner designated by plaintiffs adversary to perform the exam, is alleged to have “[taken] plaintiffs head in his hands and forcefully rotated
Contrary to the impression that might be produced by the majority writing, the issue of whether allegedly tortious conduct is for statute of limitations purposes to be deemed medical malpractice or ordinary negligence is not new to this Court. Nor is it one whose disposition is ungoverned by settled principles. We have held clearly and repeatedly that “[c]onduct may be deemed malpractice, rather than negligenсe, when it ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician’ ” (Scott,
This conclusion, of course, is entirely consistent with the purpose of CPLR 214-a’s abbreviated limitations period, which was not to afford those providing litigation support services a measure of protection against liability, but 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 dеlivery of health care services” would not be impaired (Mem of State Exec Dept in Support of L 1975, ch 109, 1975 McKinney’s Session Laws of NY, at 1601-1602 [emphasis added]).
The majоrity’s embrace of the novel and highly problematic notion that there may be medical malpractice in the absence of medical treatment evidently proceeds from the conviction that the same conduct by a doctor should not be deemed malpractice in one context and negligence in another. Yet, in postulating that a medical examiner, such as defendant, undertakes a limited duty to the examinee not involving “ ‘the full panoply of the physician’s typical responsibilities to diagnose and treat’ ” (majority op at 635, quoting Dyer v Trachtman,
Context cannot be consigned to irrelevance, even in the case of what would be “prototypical malpractice.” We have held as much. In Weiner, where the defendant hospital, intent on hav
“although the Hospital correctly points out that a physician must supervise the process of blood collection (see, e.g., 10 NYCRR 58-2.1 [s]; 58-2.2 [a]), this requirement does not resolve the question of whether the challenged conduct ‘bears a substantial relationship to the rendition of medical treatment’ to a particular patient, which remains the determinative question on appeal” Weiner,88 NY2d at 788 , quoting Bleiler v Bodnar,65 NY2d at 72 ).
Here, of course, there was actual contact between plaintiff and physician, but that factual distinction between this case and Weiner is one that should possess no dispositive significance. Propinquity, particularly in what is essentially an adversarial situation between an examiner and his or her subject, is not to be confounded with medical treatment. Here, as in Weiner, there was no treatment, and that should be “determinative.”
While I agree that Lewis in undertaking to examine plаintiff assumed a duty not to harm him in the process, the breach of such a duty would not sound in medical malpractice. The very limited duty arising in this situation bears not the slightest resemblance to the very much more comprehensive set of responsibilities devolving upon a practitioner engaged in treatment—the defining set of responsibilities contemplated by the Hippocratic injunction to do no harm. The duty here implicated does not arise from what is reasonably susceptible of characterization as a doctor-patient relationship, i.e. a treatment relationship; it is simply an instance of the general obligation, frequently enforсeable in tort, to refrain from causing foreseeable harm. That is ordinary negligence. It is today denominated “medical malpractice” only by dint of an exercise in judicial artifice untethered to any law or to the actual nature of the transaction known euphemistically as an “independent” medical examination. These exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the ex-aminee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee’s claimed injury and to dispute the need for any treatment at all. Indeed,
The cause of action the majority now recognizes for medical malpractice is not only stillborn 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 propеrly afforded and reserved to those engaged in the delivery of medical care and treatment.
The well considered decision of the Appellate Division should be affirmed.
Judges Ciparick, Graffeo and Read concur with Judge Smith; Chief Judge Lippman dissents and votes to affirm in a separate opinion in which Judges Pigott and Jones concur.
Order reversed, etc.