Creating a traditional doctor-patient relationship
The defense to malpractice liability in third-party evaluations is severely undercut and may even be lost when a court determines that a treatment relationship has been created. This relationship is, in essence, an expressed or implied legal contract. Whether such a contract is formed depends in large part on what occurred in the mind of the person being evaluated, not in the mind of the physician. 11 Courts considering this issue will inquire whether a reasonable person in the position of the person being evaluated would have concluded that a physician- patient relationship existed.12
This determination is often considered a matter of fact by courts and is based on a number of factors, such as the clarity of the nature of the relationship between the physician and the person being evaluated (based on practical and financial arrangements).11 The courts have interpreted a variety of acts undertaken by a physician to establish a physician-patient relationship. In addition to including any treatment or advice given by the physician to the person being examined, anything said or done during or as a result of the examination on which the person being evaluated comes to rely will also be considered to establish such a relationship.1,3,7
Courts will also consider whether the parties behaved in a manner that would lead an objective observer to conclude that a contract was formed. Most important, if the physician offers affirmative medical treatment, a court may reasonably assume a physician-patient relationship has been created. Under these circumstances, the examining physician becomes a treating physician even though there is no explicit contractual agreement. The physician assumes the duties and obligations of a reasonable physician and becomes subject to the laws of medical malpractice.1,3,7
The situation most fraught with risk of malpractice liability arises when psychiatrists agree to perform a forensic evaluation or provide court testimony for patients they have been treating clinically. In these circumstances, in addition to causing potential ethical problems, 18 the third-party evaluation may destroy the treatment relationship and expose the psychiatrist to claims of both medical and forensic malpractice. Therefore, for both ethical and riskmanagement reasons, psychiatrists are advised to make every effort to avoid providing forensic services for patients whom they are treating.4,11,18
Liability and the third party
When contracting with a third party, the IME physician also assumes obligations directly to that party.1,3,4,8,19 Courts have held that physicians conducting third-party evaluations owe a duty to the third party who retains them to provide reasonable care to the person being evaluated, even if no duty to the person being evaluated exists. In virtually all jurisdictions, physicians who provide third-party evaluations can be sued for malpractice by the retaining third party if the party, whether an insurer, an attorney, or a litigant, is injured by the consequences of negligent forensic evaluation.20,21
There are 2 types of immunity relevant to third-party evaluations. Quasi-judicial immunity refers to immunity for persons other than judges who are performing judicial activities. Witness immunity protects testimony in a judicial proceeding from civil liability.8,12,22 However, these types of immunity are not absolute. Case law has shown the immunity available to IME physicians varies with the type of examination conducted. In general, experts hired by one of the parties to litigation are not covered by quasi-judicial immunity, even if an IME has been ordered by the court.8
Moreover, even if protected from civil suit by quasi-judicial or witness immunity, a forensic psychiatrist who gives false or negligent testimony in a judicial proceeding may still be subject to sanction for ethics violations by a medical licensing board or by a professional society.4 Physicians may also be reported to their state medical boards and disciplined.4,22
The boundaries of third-party evaluations and expert testimony liability in civil litigation are constantly shifting. Psychiatrists should therefore be familiar with their ethical and legal obligations and operationalize them to minimize liability risk. They are also well advised to stay abreast of evolving legal standards and to obtain appropriate insurance coverage for their forensic work.
Drs Simon and Gold are clinical professors, and Dr Simon is director, of the program in psychiatry and law at Georgetown University School of Medicine, Washington, DC. Dr Simon is editor, with Robert E. Hales, MD, of The American Psychiatric Press Textbook of Suicide Assessment and Management, published in 2006. Drs Simon and Gold are also co-editors of the American Psychiatric Publishing Textbook of Forensic Psychiatry, published in 2004.