Facts
- Peggy L. Smith, a personal-injury plaintiff in an auto-accident case, agreed (through counsel) to an independent medical examination (IME) by Dr. Lauren K. Welch, a neurologist retained by the opposing party.
- The IME occurred with only Smith and Welch present; Welch took a history and performed a physical examination purportedly to assess head and neck injuries.
- Smith alleged Welch berated her, snapped his fingers at her, accused her of lying, and told her she would not receive a settlement if she did not cooperate.
- Smith alleged Welch asked medically unrelated and highly sexual questions about Smith and her family, including questions about sexual practices and relationships.
- Smith alleged Welch required her to undress and repeatedly touched her breasts despite her attempts to prevent contact, then moved toward her pubic area and tried to move her hands away when she covered herself; she ended that portion of the exam.
- Smith’s expert opined that breast or gynecologic examinations depart from standard neurologic practice when assessing head injury, headaches, or head/neck complaints.
- Smith sued Welch for negligence, misrepresentation, assault, battery, invasion of privacy, outrage (intentional infliction of emotional distress), and violation of informed consent.
- The district court granted summary judgment to Welch on assault, battery, invasion of privacy, outrage, and informed consent; Smith dismissed negligence and misrepresentation to create a final, appealable judgment.
Issues
- Whether an IME physician retained by an opposing party owes tort duties to the examinee despite the absence of a traditional treating-physician relationship.
- Whether the examinee’s consent to an IME bars assault and battery claims as a matter of law, or whether conduct allegedly exceeding the examination’s scope can be actionable.
- Whether an IME physician may be liable under an informed-consent theory in a non-treatment, litigation-focused examination.
- Whether alleged sexualized questioning, coercive threats about settlement, and challenged physical contact could support a claim for outrage under Kansas law.
- Whether the alleged questioning and conduct could constitute invasion of privacy (including intrusion upon seclusion) sufficient to defeat summary judgment.
Decision
- The Kansas Supreme Court held that an IME physician owes duties in tort to the examinee even without a treating relationship.
- The court reversed summary judgment in part, allowing claims premised on disputed facts about improper touching and extreme conduct to proceed (including assault, battery, outrage, and at least part of the invasion-of-privacy theory).
- The court affirmed summary judgment in part, upholding dismissal of the informed-consent claim.
- The case was remanded for further proceedings consistent with these rulings.
Legal Principles
- A physician who undertakes a medical examination at a third party’s request must exercise reasonable care and comply with professional standards; the IME setting does not eliminate tort duties owed to the examinee.
- Consent to a medical examination is limited to its scope; contact or procedures outside the agreed purpose, and not justified by professional norms, may be “unprivileged” and support battery.
- Assault and battery claims may survive summary judgment when material facts are disputed about what occurred, the medical justification for the conduct, and whether consent covered the conduct.
- Outrage requires conduct so extreme and outrageous as to be intolerable in a civilized society and causing severe emotional distress; a combination of coercive threats, sexualized interrogation, and alleged sexual touching during an IME may satisfy the threshold for jury consideration.
- Kansas invasion-of-privacy law includes intrusion upon seclusion; medically irrelevant, highly personal sexual questioning and intrusive conduct during an examination may be actionable if highly offensive to a reasonable person.
- Informed-consent doctrine is tied to treatment decisions; in a litigation-focused IME, alleged misconduct is addressed through traditional torts (e.g., battery, outrage) rather than expanding informed-consent liability.
Conclusion
The court recognized that IME physicians owe tort-based duties to examinees and that consent to an examination does not immunize conduct exceeding the examination’s scope; it revived several claims for trial while rejecting an informed-consent theory in the IME context.