Court Rules on the Duty Owed by a Neuropsychologist or Other Defense Physician
What is the duty owed by a neuropsychologist or other defense physician when performing a defense medical examination? That was the issue before the Virginia Supreme Court last week.
There, a plaintiff who had sustained a traumatic brain injury as a result of a motor vehicle crash filed a complaint against a neuropsychologist who was retained by the defendants to perform a neuropsychological evaluation, pursuant to Virginia Rule 4:10. Plaintiff contended that the defense neuropsychologist, in undertaking the examination, owed a duty to her to exercise reasonable and ordinary care and to avoid causing her harm in the conduct of the examination. Plaintiff alleged that the defense neuropsychologist breached this duty to her because he failed to comply with the applicable standard of care within his profession (medical malpractice) and that the doctor” verbally abused (the plaintiff), raised his voice to her, caused her to breakdown into tears in his office, stated that she was ���putting on a show’ and accused her of being a faker and a malingerer.” Plaintiff contended that despite the neuropsychologist’s knowledge of her condition, he “intentionally aggravated her pre-existing condition and her post-traumatic stress disorder and her brain injury.” (Count 1). Plaintiff also alleged (Count 3) that the neuropsychologist’s conduct was “intentionally designed to inflict emotional distress upon her or was done with reckless disregard for the consequences when he knew or should have known that the emotional distress would result.” Plaintiff also alleged that the neuropsychologist’s conduct was outrageous and resulted in severe emotional distress.
The neuropsychologist filed a demurrer to the motion for judgment specifically arguing that the examination did not create a physician-patient relationship so that he owed no legally cognizable duty the plaintiff. He further argued that under the facts of the case, that plaintiff “failed to allege any facts which constitute a breach of the standard of care required of a reasonably prudent clinical psychologist.”
The defendant neuropsychologist also argued that plaintiff failed to allege facts which would support a claim for the tort of intentional infliction of emotional distress. Defendant argued that plaintiff failed to show that the conduct was outrageous or that plaintiff’s injuries as a result were severe.
After a hearing, the trial court granted defendant neuropsychologist’s motion and dismissed all counts with prejudice.
On appeal, the Supreme Court reversed the trial court with regard to the count alleging medical malpractice.
The Court found that while a physician/patient relationship in the traditional sense did not exist, that was not dispositive of the motion. The Court found that under the facts of the case plaintiff’s consent was implied and the neuropsychologist’s consent was expressed so as to establish a limited physician/patient relationship. The Court found that a limited cause of action existed, finding that the physician’s professional duty in the conduct of a defense medical examination relates solely to the actual performance of the examination. The Court noted “Unlike a physician in a traditional physician/patient relationship, a Rule 4:10 examiner has no duty to diagnose or treat the patient and no liability may arise from his report or testimony regarding the examination.” The Court concluded that the physician’s duty in a Rule 4:10 setting is solely to examine the patient without harming her in the conduct of the examination.
With that underlying finding, the Court held that a cause of action for malpractice may lie for the negligent performance of a Rule 4:10 examination. Having determined that a cause of action in malpractice existed as a matter of law, the Court turned to the factual allegations in the complaint. Based on the facts alleged which required the Court to accept them as true for purpose of the motion, the Court found that the plaintiff had set forth a cognizable legal cause of action and reversed the trial judge.
With regard to the intentional infliction of emotional distress claim, the Court found that the actions alleged by plaintiff did not equate to “outrageous behavior” as set forth under Virginia case law and further that plaintiff failed to show sufficient support for her claim that her injuries were severe. The Court therefore upheld the trial court’s dismissal of counts one and three and permitted plaintiff to pursue her claim under count two, alleging medical malpractice.