Independent Medical Examinations – Incidental Findings
Many of our members conduct independent medical examinations at the request of insurance companies or other third parties. Members ring us often to discuss issues arising from providing these reports.
One of the questions we are often asked relates to the issue of incidental (significant) findings during an independent medical examination. For example, a routine x-ray carried out for the purpose of the medico-legal examination identifies a tumour. Does the examining medical practitioner have an obligation to advise the patient of the discovery of the tumour? In our view there is a clear moral and ethical duty to make this disclosure to the examinee, but is there also a legal duty?
As far as we are aware, there are no Australian court cases which have discussed the duty of an independent medical examiner to disclose information to an examinee. Perhaps not surprisingly, in the United States of America, this issue has been tackled and it has been found that such a duty exists.
The Supreme Court of Arizona considered the question of whether a radiologist evaluating a chest x-ray for a pre-employment tuberculosis screening owed a duty of care to the examinee and, if so, what were the obligations to take reasonable steps to make known any serious abnormalities observed.
The radiologist evaluated a chest x-ray in the above circumstances at the request of the employer. The radiologist concluded and wrote in his report that the x-ray showed abnormalities ie “a small nodule overlying the right 6th rib” and “a patchy consolidated parenchymal pattern superimposing the right 3rd rib interiorly and interspaced”. The radiologist sent the report to the prospective employer but did not advise the examinee of the finding. Although the company policy required the employer to notify the examinee of the results within 72 hours they did not do so. Approximately 10 months later the examinee was diagnosed with lung cancer.
The examinee sued the prospective employer and the radiologist. The prospective employer declared bankruptcy and was dismissed from the action. The case against the radiologist continued and the Court considered whether a duty arose between the radiologist and the examinee where there was no traditional doctor /patient relationship between them.
The Court held that despite the lack of a traditional doctor/patient relationship the radiologist should have anticipated that the examinee would want to know of the potential life threatening condition and that by not knowing, she could forgo timely treatment. In light of that knowledge, the Court held that the radiologist should have acted with reasonable care and advised the examinee of the finding.
There was a dissenting judgement in that case to the effect that such a duty should not and does not exist.
Other US cases have held that in placing oneself in the hands of a medical practitioner, even if this is done at the request of one’s employer or insurer, one may have a reasonable expectation that the doctor will warn of any incidental findings of which he or she is cognisant due to the doctor’s knowledge of their specialisation.
It would not be surprising if an Australian Court found such a duty to exist if faced with a similar set of circumstances.
The imposition of a duty on the independent medical examiner regarding the diagnosis of medical conditions is a difficult topic. Most independent medical examinations are focused on a very particular part of the examinee’s history and physical examination, either at the request of an insurance company or other third party. A comprehensive search for any incidental disease is precluded by the nature of the examination. However, if a significant incidental finding is identified by the independent medical examiner it is our view that the medical practitioner has a duty to disclose that finding to the examinee and, with their consent, to the examinee’s treating general practitioner for ongoing management.
The consenting process should occur prior to the examination taking place. The examinee should sign a consent form permitting the release of information to the patient and the examinee’s (nominated) general practitioner of any abnormal finding detected during the independent medical examination.
If you would like any further advice on this issue, please contact our Medico legal Department to speak to one of our solicitors.
By Anthony Mennillo
Claims & Legal Advisor
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