Can IME physicians be sued for injuring a plaintiff during an IME?  The answer in some cases is YES.

The Washington Court in Reagan v. Newton 436 P.3d 411 (2019) dealt with the following allegation:

In May 2014, Dr. Newton, an orthopedic physician, and Dr. Dennis Chong, a physiatrist, performed Reagan’s IME. Reagan’s sister-in-law, Lisa Wilson, accompanied her to the examination and remained in the room throughout the exam.

Reagan told Dr. Newton that she had a previous injury to her left hip. During his physical examination, Dr. Newton had Reagan lie on her back. He then bent her left knee toward her chest and rotated her bent knee from the hip joint. Reagan told Dr. Newton that her hip would not rotate any further because of her previous injury, but Dr. Newton pushed her leg all the way down. Reagan screamed in pain, and Dr. Newton stated, “That was the reaction I was looking for.” Clerk’s Papers (CP) at 110. Wilson also recalls Reagan telling Dr. Newton “that’s as far as it goes” before he “yanked” on her leg, Regan crying out in pain, and Dr. Newton commenting about Reagan’s reaction. CP at 113-114. As a result of this maneuver, Reagan experienced excruciating pain in her hip. Wilson, who drove Reagan home, stated that Reagan continued to experience pain and discomfort after the IME concluded.

Reagan subsequently filed a lawsuit against Dr. Newton in which she alleged that his negligence in manipulating her hip during the IME caused her injury. The complaint requested a judgment against Dr. Newton for damages suffered as a result of his negligence. The complaint did not assert a claim for medical battery.

The court, in a lengthy decision, found as follows:

We hold that (1) a physical examination during an IME that causes injury to the person being examined constitutes “health care” under RCW 7.70.010 and therefore Reagan was required to present expert testimony regarding breach of the standard of care, (2) the trial court properly dismissed Reagan’s medical malpractice claim against Dr. Newton because she did not present expert testimony addressing the applicable standard of care or whether Dr. Newton had breached that standard of care, and (3) Reagan can maintain a claim for medical battery under CR 15(b) even though she did not plead that claim and Reagan presented evidence in opposition to summary judgment that created a genuine issue of material fact regarding Dr. Newton’s liability for medical battery.

Accordingly, we affirm the trial court’s dismissal of Reagan’s medical malpractice claim, but we reverse the trial court’s dismissal of Reagan’s medical battery claim and remand for further proceedings.