Board of Censors Position Statement: Physician Liability for Employee Examinations

By following a few simple rules, physicians in New York who perform examinations at the request of a third party (such as an insurance company, employer or Workers Compensation Board) can greatly reduce professional liability exposure to the individual examined. Such examinations do not establish a "physician-patient relationship" within the meaning of the law.

A majority of cases hold that a patient-physician relationship does not exist if (1) the physician examines the employee solely for a preemployment physical, (2) the examination is conducted at the request of the employer, and (3) the patient does not visit the physician for medical treatment and advice.

Exceptions are:

• the examining physician injured the person during the examination;
• the examining physician actually offered some medical advice or treatment to the individual that goes beyond the scope of the third party examination (thus acting as a physician with an expectation of treatment by the individual) and/or
• the examining physician actually discovers an illness or disease of which the individual should be advised to protect him/her from subsequent harm, the courts consistently find no physician–patient relationship (which then prevents malpractice recovery).

A good practice for the examining physician to follow is: to advise the individual both verbally and in writing that the examination is for limited purpose; is not being undertaken to diagnose or treat his/her medical conditions (if any); that no physician/patient relationship is being created or intended; that he/she should see his/her own physician for the treatment needs; and that ultimately the examination results will be forwarded to a third party (Employer, insurance carrier, Workers’ Compensation Board, etc.)