Illinois IMEs: No Legal Duty of Care

Failing to correctly diagnosis a brain injury in a medical exam and causing harm do not expose an expert witness to civil liability, an Illinois appellate court has ruled. The ethical questions, and its professional implications, are another matter.

The case of Philip W. Sandler v Jerry J. Sweet, PhD, et. al.2017 IL App (1st) August 4, 2017, stems from a Sandler v. Advocate Good Samaritan Hospital, in which hospital staff gave Sandler, a 63-year-old psychiatric unit inpatient, his personal items, unwittingly including his boating knife, even though he had told staff about the knife previously. Sandler then stabbed himself 30 times, losing half his blood and nearly dying. The hospital was found negligent, in part because Sandler had previously attempted to commit suicide with EKG wires and plastic tubing at the hospital, but he was not monitored as was hospital policy. Sandler, a tax attorney and CPA, won $4.2 million.

Advocate had retained Dr. Sweet, a clinical psychologist and neuropsychologist, as a controlled expert witness. At Advocate's request, Sweet had conducted a neuropsychological evaluation and found that Sandler did not suffer a brain injury.

Two years later, still before trial, Sweet reviewed additional medical records and issued a supplemental report acknowledging that the records noted “consideration of brain dysfunction in the form of hypoxic ischemic encephalopathy” (brain damage from lack of oxygen). In the supplemental report, Sweet stated that his opinion remained the same; he found that Sandler “does not have a cognitive disability, does not have acquired brain dysfunction[,] *** [and] does not show evidence of executive dysfunction.”

After Sandler won his suit against Advocate, he sued Sweet, North Shore Medical Group, and North Shore University Health System (Sweet's employers) for medical negligence, common law fraud, and breach of fiduciary duty. Sandler alleged that Sweet failed to correctly diagnose his brain injury, which caused him harm because he failed to seek “treatment and rehabilitation, which could have enhanced his quality of life.”

Sweet filed a motion to dismiss based on the Illinois Code of Civil Procedure 2-619(a)(9)), arguing that he enjoyed absolute privilege and that no physician-patient relationship existed between Sweet and Sandler. The trial court agreed, finding that Sweet owed no duty of care, dismissing the case.

Sandler appealed, in part disputing Sweet's assertion that no physician-patient relationship existed. Sandler argued that other jurisdictions (Arizona and Colorado among them) recognized a “‘limited physician-patient relationship' exists where a physician performs an independent medical examination at the request of a third party.”

Futher, Sandler argued that the American Medical Association's Code of Ethics as well as journal articles authored by Sweet concede that a psychiatrist owes a duty of care when performing a psychological exam as a retained expert.

The appellate court was not persuaded. Affirming the trial court's dismissal of the case, it wrote, “The determination of whether Dr. Sweet owed a duty of care to the plaintiff is a question of law, not a question of medical ethics.”

Expert witnesses may have complete legal immunity in many states, but having one's ethics questioned is not exactly a “win”.