Court of Appeals: Statute of Limitations for Doctors Conducting Independent Medical Examinations

In a decision of enormous importance to personal injury plaintiffs, their attorneys, and to doctors who conduct independent medical examinations (IME) for defendants, a divided New York Court of Appeals ruled today that an action for injuries caused during an IME is governed by the 2 years, 6 months statute of limitations for malpractice, and not the three year statute of limitations for ordinary negligence. Bazakos v. Lewis.

Plaintiff Bazakos brought an action for personal injuries sustained in an automobile accident. Pursuant to CPLR § 3121 he was required to undergo an IME by a doctor designated by the defendant. During the IME, Bazakos claimed, the doctor injured him. Two years and eleven months later, Bazakos sued the doctor. Malpractice actions in New York are governed by a 2 years, 6 months statute of limitations, CPLR § 214-a, whereas ordinary negligence claims for personal injury are governed by a 3 year statute of limitations. CPLR § 214.

In an opinion by Judge Smith, four members of the Court concluded that an IME creates a "limited physician-patient relationship" and that claims that the IME was conducted negligently are governed by the 2 years, 6 months statute of limitations. Citing a Michigan case, the majority concluded that the claim here is that the doctor "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." Bazakos' suit is, therefore, untimely, and must be dismissed.

In an angry dissent for himself and Judges Pigott and Jones, Chief Judge Lippman maintained that the essence of a malpractice claim is the rendition of medical treatment. Because an IME does not involve medical treatment, a claim for injuries sustained during an IME is governed by the 3 year statute of limitations for ordinary negligence:

"Here, although [the doctor] may have employed medical techniques in examining plaintiff, it is plain that no medical treatment was intended or in fact provided. The exam was conducted simply as a disclosure device in litigation and, indeed, one whose benefit inured not to the examinee but to the examinee's adversary. Bereft of any medical treatment rationale or application, [the doctor's] conduct during his examination of plaintiff is not amenable to description as medical malpractice within the meaning of CPLR 214-a."

The majority's view to the contrary, the Chief Judge writes, is a "novel and highly problematic notion," and the concept of a "limited physician-patient relationship" is "no more than a device to avail a litigant of a statutory bar....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 properly afforded and reserved to those engaged in the delivery of medical care and treatment."