Malpractice Consult

August 19, 2005

Don't fill out disability forms

I've already provided my records for these patients, but I've declined to fill out the forms, since that should be done by an independent medical examiner. However, these lawyers have repeatedly sent the forms back to me, explaining why I should fill them out.

As a family physician, I don't feel it's within my scope to make judgments on disability, and I certainly don't want to support questionable claims. But these lawyers are very persistent and aggressive in demanding my assessments. One has warned me that I'm delaying the process for my patients, and that the judges "are waiting to hear from you." What's my obligation here?

The lawyers who are pressuring you to fill out these disability forms are being lazy and cheap. They already have your records as the patients' treating physician. (I trust that you sent them your records only, not those of other treating physicians, and only after receiving the patient's signed authorization.)

The proper procedure at this point is for the firm to hire a doctor to do an independent medical exam, and to render an expert opinion. In asking you for that same judgment, those lawyers are trying to get a free expert opinion. You should tell them that since the patient is still under your care, you're not available to do an IME. You might also tell them your hourly rate for doing an expert review. That should make them go away.

Another possible reason why those lawyers are harassing you is that they may have already tried and failed to get an independent physician willing to swear that the patient is truly disabled. That may be why they're pushing you to support the claim, knowing you'll want to keep up a good relationship with the patient.

If a judge really does want your opinion, he could order it in the form of a judicial subpoena. (For that to happen, the patient's attorney would have had to ask for and justify the court order.) Only then would you have to comply.

One final reason for caution: If the patient has brought a suit against the party who allegedly caused her injury, you could be dragged into the case. If you provide an opinion in support of the claim, the opposing attorney could call you as a witness. If you refuse, the patient could become angry enough to sue you for malpractice, claiming your treatment aggravated her injury.

The author, who can be contacted at: lj@bestweb.net is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com