The plaintiff alleges in 2006 Dr. Rotman examined her in an independent medical exam in conjunction with an auto personal injury claim and states the orthopedist caused myriad injuries by asking plaintiff to move her body in various directions.
The dispute in the case was whether or not plaintiff could proceed in a claim for damages under a theory of intentional assault and battery or was limited to a malpractice claim. Plaintiff asserts that she was not receiving a health care service at the time of an independent exam. Plaintiff alleges an IME was not a medical exam, and that plaintiff could proceed with an assault case and was not precluded by not filing a timely 538.225 affidavit required in malpractice claims. The circuit court dismissed the case due to lack of a timely affidavit, a decision affirmed by the court of appeals. The court noted that an independent medical examination is by definition a health care service. 538.205(5), Jacobs v Wolff, 829 S.W.2d 470 (Mo. App. 1992)
The case is Devitre v Orthopedic Center of St. Louis, No. ED 93366 (Mo. App. 2-23-2010), and should be required reading for any examiner using IME boilerplate disclaimers that they are not providing "treatment" or establishing a patient relationship.
In Fortenberry v Buck, D.O. No. WD 70490 (Mo. App. 3-16-10), the court of appeals reversed a dismissal of a malpractice claim of a plaintiff who asserts a cortisone injection injured his ulnar nerve and rendered him unemployable. The administrative law judge in the compensation case awarded PTD and open medical following the 1997 steroid injection.
