Defense Expert May Be Sued for Medical Negligence by Plaintiff

The plaintiff alleged that she had a head injury arising out of a vehicle wreck and filed suit. The defense had her examined by a neuropsychologist under Virginia rules of court and she later sued him.

This is how the Court described Plaintiff Harris’ allegations: “Dr. Kreutzer “verbally abused [Harris], raised his voice to her, caused her to break down into tears in his office, stated she was ‘putting on a show,’ and accused her of being a faker and malingerer. Harris [also] contends that despite his knowledge of her condition, Dr. Kreutzer ‘intentionally aggravated her pre-existing condition and her post-traumatic stress disorder and her brain injury.’ Further, Harris also contends Dr. Kreutzer breached his duty to her in the conduct of the Rule 4:10 examination because he ‘failed to comply with the applicable standard of care within his profession in that he: a. failed to appropriately examine and evaluate the mental status of the plaintiff . . . and d. was deliberately abusive to plaintiff with disregard for the consequences of his conduct.’ As a result, Harris claims her mental and physical health ‘drastically deteriorate[d].'”

The trial court dismissed the case. The appellate court reversed dismissal of the medical negligence case, first saying that “b]y bringing her personal injury action, Harris gave her implied consent to the Rule 4:10 [similar to TRCP 35]examination and formed a limited relationship with Dr. Kreutzer for purposes of the examination. A physician or health care provider, such as Dr. Kreutzer, who performs a Rule 4:10 examination, expressly consents to a relationship with the examinee when he agrees to conduct the examination. Therefore, we conclude there is a consensual relationship between the physician and the examinee as patient for the performance of the Rule 4:10 examination.”

The court then looked at the issue of duty. The court said that “we hold that a cause of action for malpractice may lie for the negligent performance of a Rule 4:10 examination. However, a Rule 4:10 physician’s duty is limited solely to the exercise of due care consistent with the applicable standard of care so as not to cause harm to the patient in actual conduct of the examination.”

The dismissal of the claim of outrageous conduct was affirmed.

Read the opinion here.

I learned about this opinion from Michael Kaplan’s blog.