Dyer v. Trachtman
| Citation | 255 Mich. App. 659,662 N.W.2d 60 |
| Decision Date | 15 May 2003 |
| Docket Number | Docket No. 235114. |
| Parties | Marquis DYER, Plaintiff-Appellant, v. Edward P. TRACHTMAN, D.O., Defendant-Appellee. |
| Court | Court of Appeal of Michigan (US) |
Robert J. Dinges & Associates (by Robert J. Dinges), Detroit, for the plaintiff.
Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Paul J. Manion and Amy E. Schlotterer), Detroit, for the defendant.
Before: COOPER, P.J., and BANDSTRA and TALBOT, JJ.
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendant and denying plaintiff's motion to amend the complaint. We affirm in part, reverse in part, and remand.
Plaintiff alleged that he was injured in the course of an independent medical examination (IME) conducted by defendant for an unrelated civil action. Plaintiff asserted that, before the examination, he told defendant that he had recently had surgery to repair a tear in the superior labrum of his right shoulder and that the surgeon had placed restrictions on the movement of plaintiff's right arm and shoulder, particularly instructing plaintiff to avoid lifting the arm above forty-five degrees. Plaintiff further asserted that during the course of the examination defendant nonetheless forcefully rotated plaintiff's right arm and shoulder ninety degrees, detaching the labrum from the right shoulder and requiring another surgery to repair the damage.
Plaintiff's original complaint alleged professional negligence against defendant. Defendant moved for summary disposition, arguing that there was no physician-patient relationship between plaintiff and defendant associated with the IME. Plaintiff moved to amend the complaint to include a claim of ordinary negligence. The trial court granted defendant's motion, agreeing with defendant that there was no physician-patient relationship and that a claim of professional negligence could not be brought. The trial court further denied plaintiff's motion to amend the complaint, concluding that it would be futile to do so because any claim of negligence against the physician would be a claim of professional negligence requiring a physician-patient relationship.1
Although the trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), because we find no indication that the trial court reviewed evidence outside the pleadings in ordering summary disposition, we review this matter under MCR 2.116(C)(8), which is the correct rule under these circumstances.2 A trial court's decision to grant summary disposition pursuant to MCR 2.116(C)(8) is reviewed de novo, to determine "whether the plaintiff has stated a claim upon which relief can be granted." Beaudrie v. Henderson, 465 Mich. 124, 130, 631 N.W.2d 308 (2001).
A physician-patient relationship is a prerequisite for a professional negligence or malpractice cause of action against a physician. Hill v. Kokosky, 186 Mich.App. 300, 302-303, 463 N.W.2d 265 (1990). In an IME context, there is no physician-patient relationship and there can be no liability for professional negligence or medical malpractice. See Rogers v. Horvath, 65 Mich.App. 644, 647, 237 N.W.2d 595 (1975) ( ). While Rogers is not binding, see MCR 7.215(I)(1), we note that it is consistent with cases from other jurisdictions,3 we find it persuasive and we adopt its reasoning and result. Accordingly, the trial court appropriately granted defendant's motion for summary disposition of plaintiff's professional negligence cause of action as stated in the original complaint.
However, plaintiff's attempt to allege ordinary negligence against defendant through the amended complaint presents a different question. The trial court denied the motion to file the amended complaint on the grounds of futility, reasoning that an ordinary-negligence claim could not be supported under the facts alleged. Again, this is a question of law we review de novo. Gunsell v. Ryan, 236 Mich.App. 204, 208, 599 N.W.2d 767 (1999). We disagree with the trial court.
In Rogers, supra, the Court stated that its rule against malpractice claims arising from an IME did not necessarily extend to other theories of liability: "This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person." Rogers, supra at 647, 237 N.W.2d 595. However, as noted earlier, Rogers is not controlling. Further, this bare statement, presented without any citation of authority or further analysis, was dictum not addressing a question presented by the facts before the Court. We thus turn to other case law in determining the issue.
Both parties concede that there is no Michigan precedent addressing the situation presented here, where a plaintiff alleges that a physician conducting an IME caused physical harm to the plaintiff during the examination. In the only reported Michigan cases where a plaintiff alleged damages against an IME physician, the contention was that the physician had failed to appropriately conduct the examination and thus failed to properly diagnose a condition. See id. at 645-646, 237 N.W.2d 595; see also Sexton v. Petz, 170 Mich.App. 561, 565-566, 428 N.W.2d 715 (1988); MacDonald v. Barbarotto, 161 Mich.App. 542, 549-550, 411 N.W.2d 747 (1987).
Turning to precedent from other states, we find support for plaintiff's argument that a claim for negligence is valid under the facts alleged here. In Greenberg v. Perkins, 845 P.2d 530, 532 (Colo., 1993), the plaintiff was required by an IME physician to undergo a series of physical tests with a third party following the IME, and those further tests resulted in back problems and surgery. Reviewing precedents from other jurisdictions, the Colorado Supreme Court recognized the `"general rule' that in the absence of a physician-patient relationship a physician owes no duty to an examinee." Id. at 535. The court nonetheless concluded that "cases from other jurisdictions uniformly recognize that even in the absence of a physician-patient relationship, a physician owes a duty to the person being examined to exercise professional skill so as not to cause harm to that person by negligently performing the examination." Id. at 536. The court adopted that approach, reasoning:
This conclusion is in accord with the principle that a physician's duty is commensurate with the type and degree of responsibility that he assumes. Thus, if a physician undertakes to diagnose, treat, or otherwise care for a person, an action will lie if he performs these functions negligently. So too, if the physician undertakes to examine a person, even if he does so for the sole benefit of a third party, he will owe a duty to the examinee to exercise professional skill in conducting the examination and will be liable for injuries that result from negligent performance of this function. [Id.]
In Ramirez v. Carreras, 10 S.W.3d 757, 760 (Tex.App., 2000), the plaintiff alleged that a doctor injured him while performing an IME related to a worker's compensationclaim. The court reasoned that "[t]he duty not to injure is entirely different in scope and application from the standard of care in medical negligence causes of action." Id. The court recognized that, in the absence of a physician-patient relationship, "the physician cannot be liable for professional negligence because he has no duty to exercise professional care." Id. at 761. Nonetheless, a "duty not to injure" remains, one that "is violated only by an affirmative act which causes injury." Id. at 762.
Thus, when a physician examines a nonpatient for the benefit of a third party, the physician is not required to use professional medical care, and thus may not be held liable for professional negligence, but is required to perform the examination in such a manner so as not to injure the examinee. [Id.]
Greenberg and Ramirez find support, albeit in dicta, in a number of cases from other jurisdictions.4 We find these precedents to be persuasive. A physician conducting an IME does not enter into a physician-patient relationship with the examinee. Thus, the law does not impose any general duty to examine, diagnose, or treat the examinee in a professional manner, at the risk of liability for malpractice. Nonetheless, the physician does voluntarily accept a much lesser duty to conduct the IME in a manner that will not affirmatively cause physical harm to the examinee during the examination. Accordingly, a physician can be liable if, because of the physician's negligence, the IME results in such harm to the examinee.5
In Ramirez, supra at 763-764, the court concluded that the duty not to injure is a "strict duty" that is violated whenever physical harm occurs during an IME. We disagree. Liability cannot be imposed against a physician who does nothing negligent, just because some physical injury occurs during an IME, without any further analysis. The fact-finder must determine what actually occurred during the...
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Dyer v. Trachtman
...with the trial court that the absence of a physician-patient relationship was fatal to plaintiff's malpractice claim. 255 Mich.App. 659, 662-663, 662 N.W.2d 60 (2003). However, the court then determined that, without a physician-patient relationship, plaintiff could still maintain a claim i......
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