Kirk v. Anderson , 2021 UT 41 ( 2021 )

2021 UT 41IN THE
SUPREME COURT OF THE STATE OF UTAH
JEREMY KIRK,
Appellant,
v.
MARK ANDERSON, M.D., and BROADSPIRE SERVICES, INC.,
Appellees.
No. 20191020
Heard March 8, 2021
Filed August 5, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable Barry G. Lawrence
No. 190905655
Attorneys:
Leonard E. McGee, Peter R. Mifflin, Sandy, for appellant
Michael J. Miller, Katheleen Abke, Salt Lake City, for appellee
Mark Anderson
Ford G. Scalley, Bradley W. Madsen, Scarlet R. Smith, Salt Lake
City, for appellee Broadspire Services, Inc.
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 The aftermath of a vehicle accident that left appellant,
Jeremy Kirk, with numerous injuries leads us to contemplate
whether a physician performing an independent medical
examination (IME) owes a duty of care to an examinee. We
KIRK v. ANDERSON
Opinion of the Court
decline Kirk‘s invitation to announce such a broad and
uncompromising duty, basing our decision primarily on
important policy considerations relevant to the duty analysis.1 As
such, we affirm the district court‘s grant of appellees‘ motion to
dismiss.
BACKGROUND
¶2 This case arises from a car accident that occurred on
April 16, 2015. Appellant, Jeremy Kirk, was rear-ended by another
driver while stopped at a stoplight. At the time of the accident,
Kirk was in the course and scope of his employment with Park
City Plumbing. After the accident, Kirk drove himself home. Later
the same day, he visited a hospital, complaining that his ―whole
left side hurt.‖ In the ensuing months, Kirk received diagnostic
imaging and treatment for a number of symptoms allegedly
caused by the collision.
¶3 Because this accident occurred on the job, Kirk made a
claim for workers‘ compensation benefits through Park City
Plumbing. Park City Plumbing had contracted with American
National Property & Casualty as its workers‘ compensation
insurance carrier. Broadspire Services, Inc. is a third-party
administrator of American National Property & Casualty and, as
such, coordinates claims between the insurer and claimants. Kirk
was one such claimant whose claim was coordinated by
Broadspire.
¶4 Broadspire—through Genex Services, LLC—ultimately
arranged for an IME of Kirk‘s injuries for the purpose of
evaluating the workers‘ compensation claim, retaining Doctor
Mark Anderson to perform this evaluation. In October 2016,
Anderson conducted his evaluation of Kirk‘s injuries by both
meeting with Kirk and reviewing Kirk‘s medical records.
Anderson‘s report was returned to Genex in November 2016.
¶5 Anderson‘s report concluded that the accident caused
Kirk to suffer a transient cervical strain and that all other
symptoms that Kirk complained of or had been treated for since
the accident were secondary to pre-existing conditions. Building
upon that conclusion, Anderson further concluded that Kirk:
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1 We expressly leave open, however, the possibility that an
independent medical examiner may owe an examinee limited
duties not implicated by the facts of this case. See infra ¶¶ 9, 25
n.12.
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could return to work with only the limitation of his pre-existing
arthritis; had achieved maximum medical improvement on April
19, 2015, three days after the accident; should be released from
care with no restrictions; and did not qualify for an impairment
rating apportionable to the work-related accident. As a result of
the IME report, Broadspire denied Kirk various forms of workers‘
compensation benefits. Anderson‘s report also noted, importantly,
that he had ―informed [Kirk] that as this was an Independent
Medical Evaluation, [Anderson] would not be giving [Kirk]
medical advice[,] . . . [they] were not establishing a doctor/patient
relationship, and [Anderson] would not become [Kirk‘s] treating
physician in the future.‖
¶6 Kirk disagreed with Anderson‘s conclusions and filed an
application for a hearing before the Utah Labor Commission.
Three years after the accident, the Utah Labor Commission
determined that the 2015 accident caused ―a left knee ACL tear;
aggravation of pre-existing L4-S1 spine degeneration; temporary
cervical whiplash; and a mild concussion.‖ The Commission then
ordered ―that Park City Plumbing and/or American National
Property & Casualty . . . pay Jeremy Kirk‘s historical medical
expenses for services provided in relation to his April 16, 2015
industrial accident.‖
¶7 Kirk then filed a complaint in district court alleging
negligence and reckless conduct against Anderson and vicarious
liability against Broadspire for Anderson‘s conduct. Kirk alleged
various injuries stemming from the delay in proceedings caused
by the allegedly erroneous IME.2 Broadspire moved to dismiss
based on the theory that Anderson did not owe Kirk a duty of
care because no physician-patient relationship exists in the context
of an IME. Thus, Broadspire argued, it could not be vicariously
liable for the alleged negligence. Anderson later joined
Broadspire‘s motion. The district court heard argument from each
of the three parties and ultimately granted the motion to dismiss
based upon two Utah cases: Joseph v. McCann, 2006 UT App 459,
147 P.3d 547, and B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228.
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2 Specifically, Kirk complains that: he suffered ―delayed or
denied payments of medical expenses, delayed or denied
payments of temporary disability payments, [and] delayed or
denied payments of permanent disability payments‖; the delay
―unnecessarily prolonged and aggravated‖ his ―mental and
emotional pain and suffering arising from the accident‖; and he
had to hire experts to rebut the IME.
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KIRK v. ANDERSON
Opinion of the Court
The district court reasoned that these two cases, taken together,
stand for the proposition that a health care provider who is
conducting an IME doesn‘t owe an actionable duty of care to the
person being evaluated. Kirk appeals on the grounds that the
district court misinterpreted McCann and Jeffs. We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶8 ―We review the grant of a motion to dismiss for
correctness, granting no deference to the decision of the district
court.‖ Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275.
ANALYSIS
¶9 The question before us is whether the district court erred
in finding that an independent medical examiner owes no duty of
care to an examinee. Kirk lodges two separate bases for
establishing a duty in such circumstances: first, that a limited
physician-patient relationship exists between examiners and
examinees; and second, that, even absent a physician-patient
relationship, a health care provider owes a limited duty to a non-
patient arising from the provider‘s affirmative act. We reject
Kirk‘s first argument in full because (1) he appears to
misunderstand the purpose of an IME, and (2) no express or
implied contract to provide treatment existed between Kirk and
Anderson. As for Kirk‘s second argument, though we don‘t
disagree that a duty may exist between a health care provider
performing an IME and an examinee in certain circumstances, we
find that it doesn‘t extend to harm claimed to have been suffered
as a result of a delay in legal proceedings3 occasioned by the
health care provider‘s alleged negligent act. As such, we affirm
the trial court‘s dismissal of Kirk‘s complaint for failure to state a
claim.
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3 By ―delay in proceedings,‖ we mean a delay in any process
by which the injured person stands to gain a potential benefit.
Here, we use it to refer to the workers‘ compensation process,
which was supposedly delayed due to Anderson‘s alleged
misrepresentation, causing Kirk to pursue a separate examination
by the Utah Labor Commission. The term may also refer, for
example, to a delay in litigation, such as when an expert‘s opinion
results in a denial of summary judgment, requiring the plaintiff to
continue litigation in trial.
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I. A PHYSICIAN-PATIENT4 RELATIONSHIP DOES NOT EXIST
HERE
¶10 We begin with Kirk‘s first argument in favor of finding a
duty, which we reject outright. Kirk argues that independent
medical examiners owe examinees a duty of care due to the
existence of a special relationship, specifically in the workers‘
compensation context. In response, appellees point us to the court
of appeals‘ holding in Joseph v. McCann, arguing that it stands for
the principle that ―a physician who is retained by a third party to
conduct an examination of another person and report the results
to the third party does not enter in a physician-patient
relationship with the examinee.‖ See 2006 UT App 459, ¶ 15, 147
P.3d 547 (quoting Ervin v. Am. Guardian Life Assurance Co., 545
A.2d 354, 357 (Pa. Super. Ct. 1988)). And while McCann, as a
determination by the court of appeals, is not binding authority,
we find its reasoning persuasive and adopt it here. Kirk doesn‘t
refute McCann‘s holding (for purposes of his first argument) but
challenges its application to the facts before us. We disagree with
his challenge.
¶11 ―The existence of a physician-patient relationship
between a physician and an individual can only be recognized
when the individual is in fact a patient.‖ Id. ¶ 12. The question
here, then, is not whether an independent medical examiner may
be considered a physician, but rather who may be considered a
patient. McCann cites to the Utah Health Care Malpractice Act in
providing an answer:
[A patient is defined as] ―a person who is under the
care of a health care provider, under a contract,
express or implied.‖ Health care is defined as ―any act
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4 We use the terms ―physician‖ and ―health care provider‖
interchangeably throughout this opinion. ―Physician‖ has
typically been used in our case law to refer to the special
relationship between a medical professional and patient—as such,
we continue to employ the term ―physician-patient relationship.‖
But we emphasize that ―health care provider‖ is a more inclusive
term as it refers to a broader population of medical professionals
including, for example, nurses and psychotherapists, who are also
subject to duties arising from special relationships with patients.
See, e.g., UTAH CODE § 78B-3-403(12) (providing a list of ―health
care providers‖ who may be subject to medical malpractice
liability arising from a special relationship).
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KIRK v. ANDERSON
Opinion of the Court
or treatment performed or furnished . . . by any health
care provider for, to, or on behalf of a patient during
the patient‘s medical care, treatment, or
confinement.‖
Id. (second alteration in original) (citations omitted) (quoting
UTAH CODE ANN. § 78-14-3(22) & (10) (Supp.2006)).5 McCann
further states that a physician-patient relationship exists ―if the
professional services of a physician are accepted by another
person for the purposes of medical . . . treatment. This
relationship is consensual, and one in which the patient
knowingly seeks the assistance of a physician and the physician
knowingly accepts him as a patient.‖ Id. (alteration in original)
(citation omitted) (internal quotation marks omitted). One rule
that the McCann court distilled from these authorities was that, to
be considered a patient, a plaintiff must have been evaluated for
or provided treatment. See id. ¶ 13. But the analysis didn‘t stop
there. To establish a physician-patient relationship, an express or
implied contract must exist, and such a contract arises from what
might be characterized as a bargained-for exchange, with
consideration, between a plaintiff seeking treatment and a
physician providing treatment. See id. (―Because [plaintiff] did not
seek treatment from [defendant], nor did [defendant] provide
treatment to [plaintiff], [defendant] was not under an express or
implied contract to provide health care to [plaintiff]. Thus, no
physician-plaintiff relationship existed . . . .‖).
¶12 Kirk doesn‘t appear to disagree with the first part of this
reasoning, as he acknowledges the plaintiff in McCann had been
evaluated solely to determine his fitness as a police officer, and
the examiner ―never contemplated providing any sort of care or
treatment to‖ the plaintiff. Rather, Kirk argues that McCann
doesn‘t apply ―[i]n the worker‘s [sic] compensation context,
[where] providing necessary treatment and care . . . is one of the
principal aims.‖
¶13 We very much disagree with Kirk‘s view of the purpose
of an IME in a workers‘ compensation claim. As with evaluations
of the fitness of an examinee for a particular occupation, see
McCann, 2006 UT App 459, an IME of an allegedly injured
__________________________________________________________
5 The Utah Health Care Malpractice Act has since been
renumbered to section 78B-3-401–426, with ―patient‖ defined at
subsection 403(23) and ―health care‖ defined at subsection
403(10).
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employee for workers‘ compensation purposes is, generally
speaking, not performed for the purpose of providing treatment.
Rather, the purpose of an IME, in the workers‘ compensation
setting, is to provide the carrier, and potentially the relevant fact
finder, with independent information on the claimant‘s injuries.
See KENNETH J. BROWNLEE & PATRICK MAGARICK, 1 CASUALTY
INSURANCE CLAIMS § 7:13 (4th ed. 2021) (―An ‗independent‘
medical examination is exactly that—it involves no treatment . . . .
IMEs should be utilized . . . [t]o help determine if the alleged
injuries or disability resulted from the accident giving rise to the
claim, and to corroborate the injuries claimed.‖); Dyer v.
Trachtman, 679 N.W.2d 311, 315 (Mich. 2004) (―In the
particularized setting of an IME, the physician‘s goal is to gather
information for the examinee or a third party for use in
employment or related financial decisions. It is not to provide a
diagnosis or treatment of medical conditions.‖); Reagan v. Newton,
436 P.3d 411, 419 (Wash. Ct. App. 2019) (noting that the
relationship between an independent examiner and examinee
―does not involve the full panoply of the physician‘s typical
responsibilities to diagnose and treat the examinee for medical
conditions‖ (quoting Dyer, 679 N.W.2d at 314–15)); Boulevard
Multispec Med., P.C. v. Tri-State Consumer Ins. Co., 43 Misc.3d 802,
805 (N.Y. D. Ct. 2014) (―[T]he purpose of an IME . . . is to permit
the insurer to determine the nature and extent of the injured
party‘s injuries, whether the injured party needs additional
treatment or testing for those injuries and for how much longer
such treatment might be needed.‖).
¶14 Even if Kirk were correct in arguing that workers‘
compensation‘s ―sole purpose for being is to provide injured
workers‘ necessary and reasonable medical care‖ (and he is not),
his argument would nonetheless fail. We agree with McCann‘s
holding that, in addition to treatment, there must be an ―express
or implied contract to provide health care‖ between the parties.
McCann, 206 UT App 459, ¶ 13. No such contract existed between
Kirk and Anderson. Notably, during the IME, Anderson
―informed [Kirk] that [they] were not establishing a
doctor/patient relationship.‖6 And even if this express disclaimer
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6 An implicit contract formed by an actual bargained-for
provision of treatment may, however, defeat an express waiver of
a physician-patient relationship. As such, we find it important to
note that Anderson‘s express disclaimer is not a per se waiver of a
special relationship, but it does serve as an indication of
(continued . . .)
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KIRK v. ANDERSON
Opinion of the Court
were insufficient, the facts provide further support. Kirk did not
―knowingly seek[] the assistance of a physician,‖ id. ¶ 12 (citation
omitted)—to the contrary, Kirk admits that he ―was required to
submit‖ to an IME ―by a provider of Broadspire‘s choice.‖ And
Anderson did not ―knowingly accept[] [Kirk] as a patient,‖ id.
(citation omitted), but rather agreed with Genex to conduct an
IME for an employee of Park City Plumbing, who carried
workers‘ compensation insurance under American National
Property & Casualty, who in turn contracted with Broadspire to
act as a third-party administrator, who hired Genex. This tortuous
path from Kirk to Anderson dispels any suggestion that even an
implicit contract existed between them.
II. HEALTH CARE PROVIDERS OWE NO DUTY FOR INJURIES
FLOWING FROM A DELAY IN PROCEEDINGS
¶15 We now turn to Kirk‘s second argument in favor of
finding a duty, which relies on our holding in B.R. ex rel. Jeffs v.
West, 2012 UT 11, 275 P.3d 228. He argues that, absent a physician-
patient relationship, a health care provider nonetheless ―owe[s] a
duty of care arising from his own affirmative conduct.‖ And he
insists that the district court erroneously dismissed his claim for
want of a legal duty under Jeffs. While we agree with Kirk that,
under Jeffs, ―non-patients are not categorically barred from
seeking redress for malpractice committed by Utah healthcare
providers,‖ we nevertheless conclude that Jeffs doesn‘t extend to
the circumstances in this case. Specifically, we decline to find a
duty where, as here, the harms allegedly caused by the health care
provider in providing an IME flow from a delay in proceedings.7
We reach this conclusion based on the policy-based fifth factor of
the Jeffs test. We begin with a brief overview of the Jeffs test and
then explain why we decline to find such a duty here.
Anderson‘s intent to merely perform an IME on behalf of his
employer and not to enter into a physician-patient relationship
with Kirk.
7 The one harm Kirk claims that arguably does not flow from a
delay is the alleged cost of hiring an expert to rebut the IME.
Rather than aid Kirk‘s argument, this allegation further cements
our view that creating a duty along the lines Kirk suggests would,
as we explain below, infra ¶¶ 22–23, greatly jeopardize the use of
experts in litigation and other proceedings.
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A. The Jeffs Test
¶16 Kirk is correct in arguing that a physician-patient
relationship is not a ―categorical predicate‖ in bringing a medical
malpractice action.8 In Jeffs, we recognized that ―a special
relationship or physician-patient relationship need not underlie
the defendants‘ duty to the plaintiffs‖ when a nurse had
negligently prescribed a cocktail of medications to a patient,
causing a violent outburst in the patient that culminated in the
murder of the patient‘s wife. Jeffs, 2012 UT 11, ¶¶ 2, 19. In
recognizing that such a duty may exist, we synthesized a
balancing test from factors previously identified in our case law
that serves as a limiting principle for all unintentional tort actions
(not just those between a health care provider and non-patient).
So, in determining whether a defendant owes a duty to a plaintiff,
we consider:
(1) whether the defendant‘s allegedly tortious
conduct consists of an affirmative act or merely an
omission; (2) the legal relationship of the parties;
(3) the foreseeability or likelihood of injury; (4) public
policy as to which party can best bear the loss
occasioned by the injury; and (5) other general policy
considerations.
Id. ¶ 5 (citations omitted) (internal quotation marks omitted). And
because we recognized that ―[n]ot every factor is created equal,‖
we characterized the first two factors as ―‗plus‘ factor[s]—used to
impose a duty where one would otherwise not exist,‖ and the
latter three factors as ―‗minus‘ factors—used to eliminate a duty
that would otherwise exist.‖ See id.
¶17 Before moving on, we take this opportunity to express
what has been implied by our developing case law following Jeffs:
The third factor regarding foreseeability has since taken on an
elevated role in this court‘s duty analyses, represented in both
Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 44, 356 P.3d 1172, and
__________________________________________________________
8 To the extent that Kirk argues ―[t]he trial court erroneously
require[ed] a traditional doctor-patient relationship as a necessary
factual predicate to a medical malpractice action,‖ we disagree,
finding this conclusion to be a misreading of the trial court‘s
order. The trial court contemplated the application of Jeffs in the
absence of a physician-patient relationship and ultimately
determined that no legal duty existed. See Order granting Mot. to
Dismiss, Kirk v. Anderson, 4–5, No. 190905655 (Nov. 15, 2019).
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Opinion of the Court
Herland v. Izatt, 2015 UT 30, ¶ 14, 345 P.3d 661. See also Boynton v.
Kennecott Utah Copper, LLC, 2021 UT 40, ¶ 21, -- P.3d --. As such,
we now formally acknowledge that it may be used as a ―plus‖
factor in Jeffs analyses, and we may rely upon it in imposing ―a
duty where one would otherwise not exist.‖ Jeffs, 2012 UT 11, ¶ 5.
¶18 Though considered ―minus‖ factors, the final two Jeffs
factors are certainly important. Thus, even if the ―plus‖ factors are
present, these ―minus‖ factors may nonetheless carry the day if
the underlying policy considerations outweigh the factors
indicating the existence of a duty. See, e.g., Nixon v. Clay, 2019 UT
32, ¶ 15, 449 P.3d 11. Our analysis today focuses on the fifth Jeffs
factor, which ultimately carries the day in determining that a duty
does not exist in this case.
¶19 The fifth Jeffs factor acts as a catch-all under which we‘ve
considered a range of public policy concerns both within the
health care malpractice field and beyond. See Jeffs, 2012 UT 11¶¶ 33–35 (dismissing defendants‘ argument that ―recognition of a
physician‘s duty to nonpatients will diminish the availability of
prescription medications‖); id. ¶ 36 (dismissing defendants‘
argument that recognition of a duty will impact ―malpractice
insurance and healthcare costs‖); id. ¶¶ 37–38 (dismissing
defendants‘ arguments that recognition of a duty ―will interfere
with confidentiality in physician-patient relationships‖ and will
―conflict with the physicians [sic] duty of loyalty to her patient‖);
id. ¶ 39 (recognizing ―the complexity of the medical professional‘s
sphere of judgment‖ but finding that such complexity doesn‘t
always supersede ―professional responsibility for negligence‖ and
that ―a ‗complex universe of patient care‘ does not make injured
nonpatients‘ injuries any less troubling‖); see also Nixon, 2019 UT
32, ¶ 23 (rejecting a finding of tort liability in ―high-contact
sports‖ because otherwise ―the majority rule could impose
liability on players for simply playing the game as it is designed
and expected to be played‖); Mower v. Baird, 2018 UT 29, ¶ 31–36,
422 P.3d 837 (finding defendants‘ policy argument that
recognition of a duty to the parents of a minor patient ―would
‗chill‘ a therapist‘s treatment of a minor child‘s sexual abuse
trauma‖ was insufficient to reject a categorical duty but warranted
a limitation on the duty); Scott, 2015 UT 64, ¶¶ 47–49 (balancing
the public policy concerns favoring prison rehabilitative programs
―with the tort law policy of compensating injured parties‖).
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B. Public Policy Disfavors a Duty for Injuries Flowing from a Delay in
Proceedings
¶20 Our decision today contemplates the circumstance in
which an expert9 allegedly causes a delay in proceedings, and a
plaintiff alleges injury as a result of that delay. Following the Jeffs
test in order, one might feel compelled to first answer whether the
facts satisfy the ―plus‖ factors in recognizing a duty between
Anderson and Kirk. Maybe they do, maybe they don‘t. The
answer to this question, however, is of no moment because we
find that, if we address the ―minus‖ factors—in particular, the
fifth factor— first, the underlying policy considerations weigh
strongly in favor of imposing no duty. Thus, we assume for
purposes of our analysis that the Jeffs ―plus‖ factors—that is, an
affirmative act with foreseeable harms—exist in this case.
¶21 In addressing the fifth Jeffs factor, the general public
policy considerations that lead us to our conclusion are: (1) there
is no limiting principle that would prevent the chilling of expert
involvement in disputes if we were to accept Kirk‘s argument that
health care providers owe a duty of care in performing IMEs;
(2) experts play a crucial role in all manner of proceedings in
providing unbiased expertise and preserving trust relationships;
and (3) experts typically have no special relationship with the
subject of their examination, analysis, or opinion, but rather a
contractual relationship with their client.10
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9 We use the term ―expert‖ to refer to a witness upon whose
opinion a party relies in order to obtain a benefit or to present a
defense. Here, the expert is a physician serving as an independent
medical examiner. It may also include, for example, an expert
witness called to testify at trial.
Additionally, the experts we contemplate in this opinion do
not include experts hired by the party alleging injury, but rather
court-appointed experts, opposing-party experts, and
independent medical examiners. For the ease of the reader, all
references to experts in this opinion exclude experts employed by
the injured party.
10 We note, importantly, that nothing in this opinion alters the
tort and contractual duties that may be owed by an expert to their
client. See infra ¶ 25 n.12. This opinion specifically addresses
experts not hired by the party alleging harm, such as independent
medical examiners, court-appointed experts, and opposing party‘s
experts. See supra ¶¶ 9 n.3, 20 n.9.
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Opinion of the Court
¶22 We address each of these policy arguments in turn as we
determine whether an expert owes a duty of care to a party in a
legal matter to not cause a delay in proceedings. Our overarching
concern today is that there is no clear limiting principle that
would prevent experts across the board from becoming liable
when their professional opinions cause delays in proceedings. For
example, an expert, or even a private insurance adjuster, asked to
testify at a mediation hearing could be liable for giving testimony
that delays a party‘s relief. We are deeply concerned that this
liability would chill or suppress honest and unfettered expert
opinions, which have significant societal value. And we are not
alone in this concern. For example, the Supreme Court of
Michigan noted the ―unacceptable risk‖ of chilling expert
testimony in imposing liability. Dyer v. Trachtman, 679 N.W.2d
311, 315–16 (Mich. 2004) (―To permit such an action would make it
impossible to find any expert witness willing to risk a lawsuit
based on his testimony as to his opinions and conclusions . . . .‖
(quoting Hafner v. Beck, 916 P.2d 1105, 1108 (Ariz. Ct. App. 1995)));
see also Smith v. Radecki, 238 P.3d 111, 115 (Alaska 2010) (noting
that courts that have declined to find a duty in the IME context
―rely principally upon the desire not to chill the willingness of
doctors to act as expert witnesses in workers‘ compensation
cases‖); Martinez v. Lewis, 969 P.2d 213, 219 (Colo. 1998) (en banc)
(warning that ―physicians would be less likely to perform IMEs
altogether given the liability risks‖).
¶23 Next, experts serve a critical role in proceedings as
sources of unbiased expertise. This service facilitates the
relationships between parties without otherwise conflicting
interests—relationships which carry their own societal value. For
example, though not to be conflated with health care providers
engaged in physician-patient relationships, independent medical
examiners do play a vital role in the overall administration of
health care benefits and workers‘ compensation benefits. In these
situations, the independent medical examiner offers an unbiased
opinion assessing specifically whether the patient‘s work-related
injury requires treatment, while the injured person‘s own health
care provider is able to administer care without influence by
insurance companies (thus preserving the provider‘s loyalty to the
patient and the patient-provider trust dynamic)—patients enjoy
unbiased care while the insurance companies still benefit from the
opinions of medical professionals. See Shanil Ebrahim et al.,
Commentary, Ethics and Legalities Associated with Independent
Medical Evaluations, 186 CANADIAN MED. ASS‘N J. 248, 248 (2014)
(noting that, in traditional physician-patient relationships, health
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care providers may be held liable for damages if they don‘t
appear to act in the patients‘ best interests); see also Lydon v.
Sprinkler Servs., 841 A.2d 793, 795–96 (Me. 2004) (noting that IMEs
serve ―to prevent ‗doctor shopping‘ and reduce litigation‖).
Recognizing a duty owed by an independent medical examiner
has the potential to disrupt this valuable system.
¶24 It is also important to note the purpose of an IME in
addressing related public policy concerns. As stated above, supra
¶ 13, the purpose of an IME in the workers‘ compensation context
is to identify injuries caused by work-related accidents to
determine benefits owed. An IME, in other words, is just one step
in the workers‘ compensation process, a process that contains its
own safeguards against delays in payment of benefits. See
Gunderson v. May Dep’t Stores Co., 955 P.2d 346, 352 (Utah Ct. App.
1998) (noting that the Utah Workers‘ Compensation Act ―provides
specific remedies‖ for delays in payment). There is no need, then,
to subject a third party to liability in order to provide an injured
party with an extra remedy—particularly not when this belt-and-
suspenders approach could have the adverse effect of chilling
expert testimony.
¶25 Finally, an independent medical examiner has a
contractual relationship with the entity that employs them but no
preexisting relationship with the subject of the examination. And
this contractual relationship is often independent of, if not
adverse to, the subject‘s relationship with the examiner‘s
employer. To impose a categorical duty of care running from the
independent medical examiner to the subject would put the
examiner in an untenable position, if not create an outright
conflict of interest. See, e.g., J.R. Shepherd, Physician giving medical
examination to insurance applicant as agent of insured or of insurer, 94
A.L.R.2d 1389, § 2[a] (1964) (―[A] physician who examines
applicants for insurance . . . is generally recognized as being the
agent of the insurer, and not the insured . . . .‖);11 Joseph v.
McCann, 2006 UT App 459, ¶ 14, 147 P.3d 547 (noting that the
independent medical examiner owed a duty to the city because he
had ―contracted with the City to provide an IME of‖ the plaintiff).
We need not discuss today the parameters of the standard of care
__________________________________________________________
11 We do not mean to suggest that all independent medical
examiners are agents of the insurer in Utah. We cite to this
American Law Report merely as support in our policy analysis.
Whether an independent medical examiner would qualify as an
agent of the insurer is a question for another day.
13
KIRK v. ANDERSON
Opinion of the Court
owed by an independent medical examiner to their hiring
insurer—that question is not before us. But we can safely say that
an independent medical examiner who has otherwise conducted
an IME in good faith and has met their standard of care has
fulfilled their duty, regardless of whether the results were
favorable to the insurer or to the IME subject. Thus, if we are to
assume the facts before us favor a duty under the Jeffs ―plus‖
factors, we nonetheless find that policy considerations favor no
duty owed by an expert whose professional opinion causes a
delay in legal proceedings. So, even if Anderson‘s IME report
constituted an affirmative act with foreseeable harms, he is not
liable for Kirk‘s injuries resulting from the delay in the workers‘
compensation proceedings.12
__________________________________________________________
12 None of this is to suggest that there are no circumstances in
which an independent medical examiner would owe a duty of care
to an examinee. In fact, this court noted that examiners must
―avoid affirmatively causing physical injury‖ during an IME. Jeffs,
2012 UT 11, ¶ 17. Put another way, Jeffs stands for the proposition
that the ―duty would be as obvious as the ensuing injuries‖—that
is, the use of ―a scalpel instead of a tongue depressor to facilitate a
throat examination‖ would be an affirmative act with foreseeable
harms giving rise to a duty, id. ¶ 17, while an IME report alone is
not.
And Jeffs wasn‘t the only time this court specifically
contemplated an affirmative act with foreseeable harms in the
physician-nonpatient context. In Mower, we held that a mental
health therapist has a duty ―to refrain from recklessly causing a
nonpatient parent physical harm to his or her body or property or
severe emotional distress by giving rise to false memories or
fabricated allegations of sexual abuse committed by that parent
through affirmative acts when treating the parent‘s minor child.‖
2018 UT 29, ¶ 113. We also find illuminating the Michigan case
cited in Anderson‘s brief in which the court found a limited duty
where an independent medical examiner negligently caused
further injury to the examinee by over-rotating the examinee‘s
injured shoulder. Dyer, 679 N.W.2d 311. The Supreme Court of
Michigan identified an affirmative act with a foreseeable harm in
the actual performance of an IME and held that a duty exists ―to
exercise care consistent with [the independent medical
examiner‘s] professional training and expertise so as not to cause
physical harm by negligently conducting the examination.‖ Id. at
317.
14
Cite as: 2021 UT 41Opinion of the Court
CONCLUSION
¶26 Today is a reminder of the powerful role public policy
considerations can appropriately play in our judicial system. In
cases such as this, it is our duty, as judges, to consider public
policy to determine whether the societal cost of a legal
intervention, such as tort liability, outweighs its social utility.
Because we find those costs too high today, we affirm the district
court‘s grant of appellees‘ motion to dismiss.
15