New York Personal Injury Law Blog » Insurance Industry, Medical Malpractice


December 1st, 2009

NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians

Generally speaking, one can’t sue a doctor that does a medical-legal exam for the other side. These exams come up in the context of Workers’ Compensation trying to cut off a worker’s benefits, Defense Medical Exams for personal injury suits where too many doctors seem to claim that every injury under the sun is one that pre-existed the accident, or cutting off benefits under the wreck of legislation that we call No-Fault.

Historically, the bar to such suits takes place because there is no duty of care between the examiner and the examinee.

But last week New York’s Appellate Division First Department said that these doctors can, in fact, be sued, if three conditions are met. This is based on “an implied physician-patient relationship” if the examiner gives advice.

In Badalto v. Rosenberg, a unanimous panel of the First Department wrote that

“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.

So if then, hypothetically, a doctor does an exam for a Workers Compensation carrier, and claims the worker can go back to work — advice for which the physician had previously been immune — and the worker relies on that advice to go back to work and is injured, the doctor can be held liable.

Can you see where this is going? 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?

Of course, there is the other option. Doctors can actually do legitimate exams instead of selling their souls to the insurance companies.

Links to this post:

Court Decision Protects Plaintiffs By Making Defense Doctors
Court-ruling-on-DME-doctor-liability Most 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,

posted by Jim Reed @ December 30, 2009 11:15 AM

Around the web, December 3
All-New York edition: New York “ranks dead last in 18 of 28 legal categories” on litigation cost, per new Pacific Research Institute report [Lawrence McQuillan, “An Empire Disaster: Why New York’s Tort System is Broken and How to Fix
posted by Walter Olson @ December 03, 2009 12:09 AM

5 thoughts on “NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians

  1. I respectfully disagree with your conclusions about the meaning of Badolato v. Rosenberg. I believe the judges clearly stated that liability may arise only when the examining doctor affirmatively gives advice and that the mere written report the doctor makes that is sent to the insurance company that hired him (whether or not the report is later disclosed to the person examined) will not give rise to liability. Of course, as we both know, anyone “can” sue and perhaps some of these doctors will now be sued by examinees claiming the report constitutes advice upon which there was reliance and an injury (or an exacerbation of an injury). These cases will be dismissed unless the facts show that during the exam the doctor affirmatively gave medical advice to the person examined. Very few doctors in these situations do that and even fewer will do so in the future.

  2. John:

    First, I think that any doctor that writes a report should expect that the person examined is likely to see it. And if they see it they may rely on it. (And if their benefits are cut off, they may have no choice.)

    Second, I think that decisions like this force the examiner to put further qualifications in their reports. And those qualifications will be the subject of cross-examination.

    The concept of the examining doctors being accountable for their reports can only be good, as it forces them toward greater candor.

    Of course, when it comes to liability there will be a million shades of gray with respect to what is written and what is said, but actual liability is only half the issue.

  3. If a worker loses his comp benefits, he will know that it was because the carrier and then the Board relied on the defense MD’s opinion. He will thus certainly know what that opinion was. If he contested the issue then it would be harder to argue he relied on that opinion.

    If he loses, then he either stays home (clearly not relying on the defense MD) or returns to work (less clearly relying on that opinion, albeit through a filter, but mainly hoping, now, that the defense MD was right).

    Because the opinion will push the defense whores a bit towards the truth, the defense industry Must appeal this one and who knows.

  4. Some of your concerns about IMEs or more correctly MEs, have been heard to some extent by those that write the No-Fault Regulations. The following is from the currently proposed amendments.

    “11 NYCRR 65-3.5 Claim procedure (r) Insurer requested health service examination and peer review reports shall be in writing and signed by the health service professional that conducted the examination or did the review. Such reports shall be based on the examination of an applicant and/or a review of the applicant’s health and other records. The reports shall not be modified by anyone other than the health service professional who prepared the report. Neither an insurer nor any person acting at the direction of or on behalf of an insurer shall change or seek to change the conclusions reached in a health service examination or peer review report rendered by a health service professional. However, an insurer may request an addendum to a report.”

    You can find the entire proposed draft, as of 11/17/09, for the New York State Insurance Department Regulation No. 68 (11 NYCRR 65) Regulations Implementing The Comprehensive Motor Vehicle Insurance Reparations Act which is to go into effect at the beginning of 2010 at

  5. And who will enforce the regs? Ins. Dept? The Ins Dept is unwilling to enforce its regulation. It will not disclose what it doing to enforce its regulation. And no court, as of yet, will force them to do anything. The proposed amendment specifically takes away any private cause of action. There is zero oversight and accountability. The insurers are already required to act in good faith. By adding (r), they are tacitly admitting that insurers aren’t acting in good faith and that insurers are asking doctors to change their reports.

    Assume and insurer violates (r), what then? Nothing. Not a damn thing.

    65-3.2(j) (j) The failure of an insurer to follow the claim practice goals shall not give rise to a private right of