IME examiner not liable for man's suicide

By Correy E. Stephenson

An independent medical examiner who submitted a report opining that no further treatment was necessary was not liable to an examinee who later committed suicide, the Michigan Court of Appeals has ruled, reversing an order denying summary disposition.

Richard Sinclair suffered severe back injuries in an automobile accident in 2011. Despite two surgeries, he still suffered from pain.

In 2013, Michigan Insurance Company, or MIC, notified Sinclair that it was terminating all PIP benefits under his claim for injuries related to the accident, as it could not substantiate his subjective injury complaints or relate the complaints to his accident.

Sinclair filed suit against MIC for PIP benefits and settled the case in 2014.

After the lawsuit, MIC continued to deny Sinclair’s medical claims although he continued to suffer from severe back pain.

Several years later, Sinclair was diagnosed with a titanium allergy and was advised by at least one doctor to have the titanium rods removed from his spine and replaced with an artificial disc.

Sinclair sought preapproval for the surgery, but MIC refused. Sinclair filed a second lawsuit against MIC in 2017, seeking coverage for the surgery.

During the litigation, MIC contracted with ExamWorks for Joseph Burkhardt, D.O., to perform an independent medical evaluation, or IME, on Sinclair.

Burkhardt did not find any evidence of a titanium allergy at the site of the lumbar fusion and submitted an IME report opining that no further treatment was necessary.

Eight months later, Sinclair committed suicide. His estate filed suit against Burkhardt and ExamWorks alleging negligence and wrongful death, defamation, fraudulent misrepresentation, tortious interference with a contract, civil conspiracy and negligent infliction of emotional distress.

The defendants move for summary disposition, which the Oakland County Circuit Court granted except as to the tortious interference with a contract and civil conspiracy claims. They appealed and the appeals court reversed.

Burkhardt correctly argued that claims against him should have been dismissed because he was not liable to an examinee for damages resulting from the conclusions he reached or reported as an IME examiner, the appellate judges found, as an IME physician’s duty is limited to conducting the examination in such a way as not to cause physical harm.

“The duties imposed upon Burkhardt and the relationship between Burkhardt and [Sinclair] are the same regardless whether the claim is for negligence, medical malpractice, or tortious interference,” the panel wrote. “Burkhardt is not liable for the conclusions that he reached after the IME and reported to MIC.”

As for the tortious interference claim against ExamWorks, the judges agreed that the estate failed to establish the required elements of the claim, as there was no evidence of any type of statement from MIC that it decided to deny further benefits after Burkhardt’s report was issued.

Sinclair’s wife “did not know whether anyone from MIC communicated with her or Richard that MIC was waiting for Burkhardt’s IME report before deciding whether MIC would pay for the surgery,” the appeals court noted. “[His wife] testified that it was her understanding that MIC relied on Burkhardt’s report to deny payment of medical bills, because MIC had been notified of Richard’s need for surgery and MIC did not provide benefits for it. When [she] called MIC to inquire, no one would speak to her. Despite [her] testimony that MIC denied payment, the lawsuit continued after the IME with discovery and mediation .

“Because [the estate] failed to present any evidence that MIC denied [Sinclair] benefits as a result of the IME, [it] failed to establish a breach of contract, which is an essential element of the claim for tortious interference with a contract.”

Finally, because the estate failed to prove a separate, actionable tort, the civil conspiracy claim also failed, the panel said.

The appeals court reversed and remanded to Oakland County for entry of an order granting the defendants’ motions for summary disposition on the remaining claims.

The case is Sinclair v. Burkhardt (MiLW 08-108134, 7 pages).

Copyright © 2024 BridgeTower Media. All Rights Reserved.