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Virginia High Court Permits Lawsuit Against Neuropsychologist For Malpractice in Performing Defense Exam To Proceed

Can a neuropsychologist be sued for medical malpractice for his conduct in conducting a defense medical examination?

Yes, says the Virginia Appeals Court in the case of Harris v. Kreutzer.

In this case, the plaintiff (the person bringing the lawsuit) brought a lawsuit for traumatic brain injuries she claimed she sustained in an auto accident.  As part of the pre-trial proceedings in her case, the defense insurance company was allowed to perform their own neuropsychological evaluation of her.  In legal circles these evaluations are sometimes referred to by defense lawyers as "Independent Medical Examinations (IME's for short) BUT, a more appropriate term is "Defense Medical Examination" since there is nothing independent about these exams which are bought and paid for by the insurance carrier which has a vested interest in saying that that there is nothing wrong.

In this case, the neuropsychological examination took place and following the exam, the plaintiff claimed that the neuropsychologist harassed and intimidated her during the exam.  The plaintiff claimed that this neuropsychologist "verbally abused her, raised his voice to her, caused her to break down into tears in his office, stated that she was 'putting on a show,' and accused her for being a faker and a malingerer."  As a result the plaintiff claimed that this conduct "aggravated her pre-existing condition, her post traumatic stress disorder and her brain injury"

Not willing to sit back and allow this type of conduct to go unchallenged, the brain injury lawyer representing the brain damaged individual (she eventually won her underlying car accident case and received a jury award of several hundred thousand dollars) brought a separate law suit against the neuropsychologist for medical malpractice.

The neuropsychologist argued that he could not be sued for medical malpractice since he did not have a "physician patient relationship" with the individual he was examining for the insurance company.  To his surprise, the Virginia appeals court disagreed and said that he owed a duty (obligation) not to cause any additional harm to the plaintiff in the manner that he conducted his neuropsychological examination.  The court said that the brain damaged plaintiff can go forward with her case and attempt to convince a jury that the conduct of the neuropsychologist was contrary to accepted standards of conduct and that the unacceptable conduct caused her further injury.

A word of advice to those neuropsychologists conducting these examinations, TREAT THE BRAIN INJURED PLAINTIFF WITH RESPECT OR YOU MAY FIND THAT YOU ARE TOO ARE GOING TO BE SUED!

To read the full opinion by the Virginia Appeals Court allowing the suit for medical malpractice against the neuropsychologist, click here .   



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