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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Radecki (8/27/2010) sp-6505

Smith v. Radecki (8/27/2010) sp-6505, 238 P3d 111

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

TERRY L. SMITH, )
) Supreme Court No. S- 13171
Appellant,)
) Superior Court No. 4FA-06- 02657 CI
v. )
) O P I N I O N
PATRICK L. RADECKI, M.D.,)
) No. 6505 August 27, 2010
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Michael A. MacDonald, Judge.

          Appearances:    Terry  L.  Smith,   pro   se,
          Fairbanks,  Appellant.  Howard A.  Lazar  and
          Kendra   E.  Bowman,  Delaney  Wiles,   Inc.,
          Anchorage, for Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          CHRISTEN, Justice.

I.   INTRODUCTION
          Terry  Smith  injured his back while  working  for  CSK
Auto,  Inc. (CSK) and brought a workers compensation claim.   CSK
arranged  for  Dr.  Patrick  Radecki to  perform  an  independent
medical  examination  to  assess Smiths condition.   Dr.  Radecki
examined  Smith  and  reported that he  had  no  physical  injury
resulting  from the incident.  But Smith later underwent  an  MRI
which  revealed several spinal problems, including a Tarlov cyst.
Smith  filed  suit  against Dr. Radecki.  His complaint  included
claims arising from Dr. Radeckis alleged failure to discover  the
existence of the cyst and Smiths earlier failed back surgery.  In
the  alternative, Smith alleged that Dr. Radecki did discover his
true  back condition but failed to report it.  The superior court
granted  Dr.  Radeckis motion for summary judgment,  ruling  that
Dr.  Radecki  and  Smith  did not have the  requisite  physician-
patient  relationship  upon which to base a  medical  malpractice
claim,  and  that  Smiths claims were barred by  the  statute  of
limitations. Because we conclude that all of Smiths  claims  were
dependent  upon him having a physician-patient relationship  with
Dr.   Radecki,   and  Smith  did  not  have  a  physician-patient
relationship  with  Dr. Radecki, we affirm  the  superior  courts
ruling.  We do not reach the statute of limitations issue.
II.  FACTS AND PROCEEDINGS
          On  March 29, 2001, Terry Smith injured his back  while
working  as  a  delivery  driver for  CSK.   Unloading  cases  of
antifreeze from the bed of his truck, Smith lifted and twisted to
remove  two  cases  that were strapped together  and  immediately
experienced  pain in his back and leg that took his breath  away.
Smith sought medical attention the next day and was  treated  for
acute  muscle  strain.   He received temporary  total  disability
benefits from March 30, 2001, through April 13, 2001.
          When   Smiths   pain   did  not   improve,   additional
assessments were performed which revealed abnormalities at L5 and
possible  degenerative  disc disease at  L4-5.   He  underwent  a
variety  of  treatments including medication,  physical  therapy,
participation  in a work hardening program, and epidural  steroid
injection.1  Smith was given some authorized time loss from  work
and  then  deemed partially disabled effective May 14, 2001.   He
returned  to  work in a light duty capacity from May  14  through
July  8,  2001,  but  he continued to report  symptoms  including
weakness,  dizziness, disorientation, loss of consciousness,  and
pain.   Smith  began  to miss work again and received  additional
temporary  total  disability benefits.  But on August  14,  2001,
Dr. Susan Klimow found Smith medically stable.2  Later that month
Smiths  treating  doctors began to consider  the  possibility  of
psychological factors in his continuing complaints of  pain,  but
physical interventions for his symptoms continued into 2003.3
          CSK  arranged  for Dr. Patrick Radecki  to  perform  an
independent medical examination (IME) of Smith on July 25,  2003.
Dr.   Radeckis  report  states  that  prior  to  conducting   the
examination  he  informed  Smith (1)  that  the  purpose  of  the
examination  was to address specific injuries or  conditions,  as
outlined by [CSKs insurance carrier], (2) that the IME was not  a
substitute for his/her personal physician(s) or health care,  and
(3) that [n]o physician/patient relationship exists or is sought.
Smith  did not dispute that he received this statement describing
the scope of Dr. Radeckis engagement.
          The   report   Dr.  Radecki  prepared    reflects   his
conclusion  that  Smith  suffered from [m]ild  degenerative  disc
disease  in his lumbar spine, including minimal disc bulge  which
[was]  not  . . . symptomatic, and exhibited nonphysiologic  pain
behavior   and  multiple  nonphysiologic  responses  to  physical
maneuvers  .  .  .  that  should  not  cause  pain,  typical   of
psychogenic  pain  disorder, severe in  nature.   In  his  report
Dr.  Radecki  stated  that  there is  no  objective  evidence  of
permanent partial impairment that can be said to have been caused
by the March 29, 2001, incident, advised against further physical
          or pharmacological interventions, and suggested psychological
treatment and weight loss.
          Smith   again  reported  severe  pain  symptoms  during
subsequent  vocational rehabilitation and  underwent  an  MRI  at
Fairbanks  Memorial  Hospital  on  November  8,  2004.   The  MRI
revealed disc desiccation at the L5-S1, L4-L5, and L3-L4  levels,
displacement of the left S1 nerve root, L5 limbus vertebra, and a
small sacral Tarlov cyst.4
          On   December   17,   2004,  Smith  filed   a   workers
compensation claim for ongoing medical bills and temporary  total
disability  during recovery from anticipated back  surgery.   The
claim  alleged  that the anticipated surgery would  address  pain
arising  from  Smiths 2001 work-related injury.  CSK controverted
the  claim,  relying  principally upon Dr.  Radeckis  conclusions
that:  (1)  Smith was medically stable as of July  of  2003;  (2)
Smith had no permanent impairment resulting from the 2001 injury;
and (3) Smith did not require further medical treatment.
          Smith  filed  suit against Dr. Radecki in the  superior
court in October 2006.  His complaint included 18 claims that  we
group into three categories: (1) claims arising from Dr. Radeckis
alleged   failure  to  discover  and  properly  treat  his   back
condition;5  (2)  claims associated with the  alternative  theory
that Dr. Radecki did discover the nature of Smiths back condition
but  did not report these findings to Smith;6 and (3) claims that
are actually prayers for relief when read in context.7
          Dr.  Radecki moved for summary judgment on the  grounds
that   Smiths  claims  were:  (1)  barred  by  the   statute   of
limitations; and (2) precluded by the lack of a physician-patient
relationship  and corresponding duty of care.  Dr. Radecki  asked
the superior court to construe each of plaintiffs allegations  as
sounding in medical malpractice and argued that for plaintiff  to
succeed  on  any  of  [his]  claims,  there  must  have  been   a
physician/patient relationship.  Smiths opposition to the  motion
did  not  respond to the contention that Smiths claims should  be
treated as a malpractice allegation, but it did reiterate  Smiths
entire list of claims.
          The  superior  court granted summary  judgment,  ruling
that  Dr.  Radecki did not owe Smith a duty of care and that  the
statute  of limitations barred his claims.  The courts order  did
not  distinguish between Smiths claims, impliedly  treating  them
all  as  variously-stated claims for medical malpractice.   Smith
moved for reconsideration of the order granting summary judgment,
but  the  superior  court  denied his motion  and  entered  final
judgment in favor of Dr. Radecki.  Smith appeals.
III. STANDARD OF REVIEW
          We   review  a  grant  of  summary  judgment  de  novo,
affirming  if  the record presents no genuine issue  of  material
fact  and  if the movant is entitled to judgment as a  matter  of
law.   All  reasonable  inferences are  drawn  in  favor  of  the
nonmovant in this examination.8
          We  review questions of law using the de novo standard,
apply[ing] our independent judgment to questions of law, adopting
the  rule  of law most persuasive in light of precedent,  reason,
and policy. 9
IV.  DISCUSSION
          Dr.  Radecki argues that he did not owe a duty of  care
to Smith because he did not have a physician-patient relationship
with  Smith.  Dr. Radecki examined Smith only once, and  only  in
the  context of conducting an IME.  His report reflects the  fact
that   Smith  was  informed  of  the  limited  nature  of   their
professional relationship.
          Alaska  Statute 09.55.540 defines the standard of  care
for  malpractice  actions  based upon the  negligent  or  willful
misconduct of health care practitioners.  We have previously held
that  the  duty to meet this standard of care arises specifically
from the existence of a physician-patient relationship.10  We have
not  previously  considered whether the  performance  of  an  IME
creates a physician-patient relationship between a doctor and  an
examinee or whether such an examination otherwise gives rise to a
duty of care owed to the examinee.
          Alaska Statute 09.55.540 requires that a party alleging
medical malpractice in Alaska must prove:
          (1)   the   degree  of  knowledge  or   skill
          possessed  or  the degree of care  ordinarily
          exercised  under  the circumstances,  at  the
          time of the act complained of, by health care
          providers in the field or specialty in  which
          the defendant is practicing;

          (2)  that  the defendant either  lacked  this
          degree  of  knowledge or skill or  failed  to
          exercise this degree of care; and

          (3)  that as a proximate result of this  lack
          of  knowledge  or  skill or  the  failure  to
          exercise  this  degree of care the  plaintiff
          suffered  injuries that would  not  otherwise
          have been incurred.
          
          In   M.A.  v. United States, we held that the  duty  to
meet  the standard of care specified in AS 09.55.540 is dependent
upon  the  existence of a physician-patient relationship.11  M.A.
involved a minors parents who alleged that their childs physician
owed  an  independent duty of care to them.   We  held  that  the
source  of  a  physicians  duty to provide  reasonably  competent
medical  care  lies in the unique nature of the physician-patient
relationship,  and  that a physician owes no comparable  duty  of
care    where   no   physician-patient   relationship   exists.12
Dr. Radecki relied on M.A. in his motion for summary judgment  to
support his argument that he did not owe a duty of care to Smith.
          Decisions  from  the majority of other  states  support
Dr.  Radeckis  assertion  that Smiths medical  malpractice  claim
should fail as a matter of law for lack of a duty of care.  These
jurisdictions have concluded that an IME performed at the  behest
of  a  third  party  does  not give rise to  a  physician-patient
relationship or to potential for medical malpractice liability.13
Courts adopting this rule rely principally upon the desire not to
chill  the  willingness of doctors to act as expert witnesses  in
          workers compensation cases.14  In these states, the duty of care
for  providing  a  correct diagnosis runs to the  IME  physicians
employer rather than the patient.15
          Given   these  authorities,  the  starting  point   for
analyzing  what duty Dr. Radecki owed to Smith must be the  scope
of  work  Dr.  Radecki agreed to perform. Dr.  Radecki  expressly
advised  Smith at the outset of the IME that no physician-patient
relationship  would  be undertaken and that the  purpose  of  the
examination  was limited to the specific injuries  or  conditions
identified  by  CSKs  insurance carrier.  We recognize  that  IME
physicians examine and interact directly with examinees,  but  we
disagree   with  Smiths  argument  that  they  thereby  establish
physician-patient   relationships  with  examinees.    Physicians
conducting  IMEs  at  the  behest  of  third  parties  assume   a
fundamentally  different  role  from  a  diagnosing  or  treating
physician;  typically,  a  physician conducting  an  IME  is  not
selected by the examinee, is not hired by the examinee, does  not
report  to  the examinee, and does not provide treatment  to  the
examinee.  We are not persuaded that a physician who performs  an
IME  undertakes  a traditional physician-patient relationship  or
owes   an  examinee  the  duty  of  care  that  attends  such   a
relationship.
          Smith  argues that even if he and Dr. Radecki  did  not
have a traditional physician-patient relationship, we should rule
that  they  had  a limited physician-patient relationship  giving
rise  to  a  duty to correctly diagnose Smiths condition.   Smith
supports   this  argument  two  ways.   First,  he  argues   that
Dr.  Radecki  is  a   member of the American Medical  Association
(AMA)  and  the  AMAs  ethical guidelines state  that  a  limited
physician-patient  relationship is established  when  an  IME  is
performed.   Second, he argues that a growing body  of  case  law
from  other states recognizes a limited duty of care exists  when
IMEs  are  performed.   We  do not find  either  argument  to  be
persuasive.         Smith argues that Dr. Radeckis membership  in
the AMA makes him susceptible to Smiths medical malpractice claim
because  the  AMAs  professional  standards  describe  a  limited
patient-physician  relationship in the context  of  an  IME.  The
phrase Smith quotes comes from the AMAs ethics guidelines, a non-
binding code for ethical behavior by member physicians.16   Smith
offers   no  authority  for  the  implied  argument  that   these
guidelines bear on the scope of IME physicians legal liability in
Alaska.   Moreover, taken in context, the statement Smith  relies
upon  does  not support his claim in this instance.   AMA  ethics
opinion  10.03  outlines the duty of IME physicians  to:  (1)  be
objective;  (2) maintain examinee confidentiality;  (3)  disclose
conflicts of interest; (4) inform examinees of the limited nature
of  the  relationship arising from the IME; and (5) make patients
aware  of abnormalities discovered during the exam.17  Smith  did
not  present any evidence that Dr. Radecki failed to abide by any
of  these  standards.  Thus, even if we were to  consider  ethics
opinion  10.03  to  create a duty of care, it would  not  support
Smiths claim against Dr. Radecki.
          As  for  Smiths  second argument, we  acknowledge  that
courts  in several other states have held that physicians  owe  a
          limited duty of care in an IME setting.18  For example, the
Tennessee  Court of Appeals held that a limited physician-patient
relationship  exists  when  an IME is conducted,  such  that  the
physician  has  a  duty  not to injure  the  patient  during  the
examination.19  Similar decisions have been reached by courts  in
New  York,20  Colorado,21  and Michigan.22   The  Michigan  court
described the limited duty as:
          .  .  .  not the traditional one.   It  is  a
          limited  relationship.  It does  not  involve
          the  full  panoply of the physicians  typical
          responsibilities to diagnose  and  treat  the
          examinee  for  medical conditions.   The  IME
          physician,  acting at the behest of  a  third
          party,  is  not  liable to the  examinee  for
          damages  resulting from the  conclusions  the
          physician  reaches or reports.   The  limited
          relationship that we recognize imposes a duty
          on   the   IME   physician  to  perform   the
          examination in a manner not to cause physical
          harm to the examinee.[23]
          
          Other  courts  have held that physicians  have  limited
duties  of care encompassing the duty to discover24 and  warn  an
examinee25  of  conditions which pose an imminent danger  to  the
examinees health, and to provide correct information to a patient
about  his  condition in the event the IME physician gratuitously
undertakes  to  render  services which  he  should  recognize  as
necessary to anothers bodily safety.26
          Though we acknowledge this growing body of case law, we
also  recognize  that it is not implicated by the evidence  Smith
offered.    Smith  did  not  present  admissible  evidence   that
Dr.  Radecki  failed to diagnose a condition that posed  imminent
harm,   that  Dr.  Radecki  knew of and concealed  an  imminently
dangerous condition,27 that Dr. Radecki went beyond his role as an
IME  physician and gratuitously rendered medical advice  directly
to Smith,28 or that Dr. Radecki injured Smith during the course of
the  examination  itself.29  Dr. Radeckis  examination  of  Smith
consisted  of  a  review of Smiths medical records  and  a  brief
physical examination that was further limited by Smith himself.30
Dr. Radecki delivered copies of his report to Smiths employer and
legal  representative  and  had no further  direct  contact  with
Smith.   In  sum, even if we were to recognize the  limited  duty
that  has  been imposed by courts in other states,  such  a  duty
would not extend to actions taken by Dr. Radecki in this case.31
          The  superior  court  did  not err  in  concluding  that
Dr.  Radecki  did  not have a physician-patient relationship  with
Smith  that  would  allow for liability for  medical  malpractice.
This  conclusion is fatal to the first category of Smiths  claims,
all  of which expressly allege medical malpractice.  To the extent
Smiths second category of claims is premised upon the theory  that
Dr. Radecki willfully failed to disclose information he discovered
during  the  IME,  Smiths  claims  fail  because  he  offered   no
admissible evidence to raise a genuine issue of material fact that
Dr.  Radecki discovered the cyst or that  Smiths earlier  surgical
          procedure was unsuccessful.  Nor did Smith explain why, in the
absence  of  a  physician-patient relationship, Dr. Radecki  would
have  had  a duty to report these conditions to Smith  if  he  had
discovered them.32
V.   CONCLUSION
          We  AFFIRM  the  superior courts order  granting  summary
judgment in favor of Dr. Radecki on the issue of duty.
_______________________________
     1     The  epidural space is located outside the dura  mater
surrounding  the  spinal cord. 9 Attorneys Textbook  of  Medicine
58.20 (Roscoe N. Gray & Louise J. Gordy eds., 1999).  The goal of
the  epidural steroid injection procedure is to reduce nerve root
inflammation.  2 Richard M. Patterson, Lawyers Medical Cyclopedia
16.9[E][2]  (6th  ed.  2009).   Smith  may  have  also  undergone
radiofrequency ablation, a procedure in which heat is created  by
ionic  vibration  at the tip of a needle and applied  to  painful
neural tissue.  4 id.  29.15a.

     2     Smith  was  referred to Dr. Klimow for evaluation  and
treatment  of  lumbar  strain by Dr. John  Duddy,  an  orthopedic
surgeon who had treated Smith.

     3     Pages  are  missing from the record of Smiths  medical
history; it is unclear exactly what treatment he received between
August of 2001 and April of 2003.

     4     [A] perineural cyst found in the radicles of the lower
spinal  chord;  it  is usually productive of symptoms.   Stedmans
Medical Dictionary 389 (25th ed. 1990).

     5     Claims in the first category include gross negligence,
failure  to diagnose (argued as two separate counts), failure  to
use  due  care,  misdiagnosis, [f]ailure to  provide  appropriate
treatment  for a medical condition; [i]mproper diagnosis,  [l]ack
of  informed consent, negligen[t] concealment of injury, battery,
and breach of duty.  Smiths abandonment claim also falls into the
first category:  it alleges that Dr. Radecki failed to attend and
care  for  Smith  and  that he failed  to  notify  Smith  of  his
withdrawal from the physician-patient relationship.

     6     The claims in the second category include [f]ailure to
advise  of  diagnosis,    fraud,  [f]alse  [r]epresentation,  and
spoliation of evidence.  These claims are premised on the  theory
that  Dr.  Radecki discovered, but failed to report,  the  Tarlov
cyst  and  that he discovered, but failed to report, that  Smiths
earlier surgery had been unsuccessful.

     7     These include [i]nterference [with] medical treatment,
[i]nterference   [with]   employment  contract,   and   emotional
distress.   In  these claims Smith addresses the  ways  in  which
Dr.   Radeckis  diagnosis  disrupted  his  access  to  continuous
treatment paid for by CSKs workers compensation insurance.

     8    Beegan v. State, Dept of Transp. & Pub. Facilities, 195
P.3d  134,  138  (Alaska 2008) (citing Matanuska  Elec.  Assn  v.
Chugach Elec. Assn, 152 P.3d 460, 465 (Alaska 2007)).

     9     Jacob v. State, Dept of Health & Soc. Servs., 177 P.3d
1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979)).

     10    M.A. v. United States, 951 P.2d 851, 856 (Alaska 1998)
(holding  that  the  source  of  a  physicians  duty  to  provide
reasonably  competent  care lies in  the  unique  nature  of  the
physician-patient relationship).

     11    Id.

     12    Id.

     13     See,  e.g.,  Hafner v. Beck, 916 P.2d  1105,  1107-08
(Ariz. App. 1995); Felton v. Schaeffer, 229 Cal. App. 3d 229, 235-
36  (Cal.  App.  1991); Martinez v. Lewis, 969 P.2d  213,  219-20
(Colo. 1998); Peace v. Weisman, 368 S.E.2d 319, 320-21 (Ga.  App.
1988);  Henkemeyer  v. Boxall, 465 N.W.2d 437,  439  (Minn.  App.
1991);  Ervin v. Am. Guardian Life Assurance Co., 545  A.2d  354,
358  (Pa.  Super. 1988); Johnston v. Sibley, 558 S.W.2d 135,  137
(Tex.  App.  1977); Joseph v. McCann, 147 P.3d 547, 551-52  (Utah
App.  2006);  Rand  v.  Miller, 408 S.E.2d  655  (W.  Va.  1991);
Erpelding v. Lisek, 71 P.3d 754, 760 (Wyo. 2003).

     14    See, e.g., Hafner, 916 P.2d at 1107; Martinez, 969 P.2d
at 219.

     15     See, e.g., Hafner, 916 P.2d at 1106; Felton, 229 Cal.
App. 3d at 235.

     16       History    of   AMA   Ethics,   Am.   Med.    Assn,
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethic
s/code-medical-ethics/history-ama-ethics.shtml (last visited July
16, 2010).

     17     Opinion 10.03 - Patient-Physician Relationship in the
Context of Work-Related and Independent Medical Examinations, Am.
Med.                Assn               (Dec.               1999),
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethic
s/code-medical-ethics/opinion1003.shtml.

     18    See, e.g., Green v. Walker, 910 F.2d 291, 296 (5th Cir.
1990);  Betesh  v. U.S., 400 F. Supp. 238, 246-47 (D.D.C.  1974);
Ritchie  v.  Krasner, 211 P.3d 1272, 1280-81 (Ariz.  App.  2009);
Keene v. Wiggins, 69 Cal. App. 3d 308, 313 (Cal. App. 1977); Webb
v.   T.D.,  951  P.2d  1008,  1013-14  (Mont.  1997);  Hoover  v.
Williamson,  203 A.2d 861, 863-64 (Md. 1964); Reed  v.  Bojarski,
764 A.2d 433, 443-44 (N.J. 2001); Johnston, 558 S.W. 2d at 137.

     19     Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009  WL
1910959 (Tenn. App. June 30, 2009).

     20     Bazakos  v.  Lewis, 911 N.E.2d 847, 850  (N.Y.  2009)
(holding that such a limited relationship encompasses a duty  not
to injure, but no duty to correctly diagnose).

     21    Slack v. Farmers Ins. Exch., 5 P.3d 280, 283-84 (Colo.
2000).

     22    Dyer v. Trachtman, 679 N.W.2d 311, 314-15 (Mich. 2004).

     23    Id. (emphasis added).

     24     Webb  v.  T.D., 951 P.2d 1008, 1013-14  (Mont.  1997)
(health care provider retained by third party to perform IME owes
duty  to  patient  to: (1)  discover conditions  posing  imminent
danger  to  examinee and take reasonable steps to alert examinee;
and  (2)  assure advice to examinee meets standard  of  care  for
providers profession; IME provider does not have the same duty of
care that a physician has to his or her own patient).

     25     Id.; see also Green v. Walker, 910 F.2d 291, 296 (5th
Cir.   1990)  (physician  who  performs  pre-employment   medical
examination for employer has affirmative duty to act  in  keeping
with training and expertise and must inform patient of conditions
posing  imminent danger); Betesh v. United States, 400  F.  Supp.
238,   246-47  (D.D.C.  1974)  (army  physicians  who  discovered
abnormality  in  chest X-ray during selective  service  screening
exam  had affirmative duty to notify examinee of need for further
medical attention); Reed v. Bojarski, 764 A.2d 433, 443-44  (N.J.
2001) (physician retained to perform pre-employment physical  has
affirmative, non-delegable duty to inform patient of  potentially
serious medical condition).

     26     Hoover  v. Williamson, 203 A.2d 861, 863  (Md.  1964)
(plaintiff  may  not  ordinarily recover for malpractice  without
express  doctor/patient relationship, but  one  who  gratuitously
undertakes  to  render  services which  he  should  recognize  as
necessary  to  anothers bodily safety, and  leads  the  other  in
reasonable reliance on the services to refrain from taking  other
protective  steps, or to enter on a dangerous course of  conduct,
is  subject  to liability to the other for bodily harm  resulting
from the actors failure to exercise reasonable care to carry  out
his undertaking ).

     27    Cf. Webb, 951 P.2d at 1013-14; see also Green, 910 F.2d
at 296; Betesh, 400 F. Supp. at 246-47; Reed, 764 A.2d at 443-44.

     28    Cf. Hoover, 203 A.2d at 863.

     29     Cf. Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009
WL 1910959, at *7-8 (Tenn. App. June 30, 2009).

     30     Smith refused to remove a lumbosacral corset for  the
examination  and forcefully decline[d] examination of  the  area,
even with the corset left on, declined to perform range of motion
tests, and refused to do a pelvic rotation movement.

     31     We  agree with Smith that the absence of a physician-
patient relationship does not immunize a physician performing  an
IME  from  all  tort  liability, and  we  do  not  rule  out  the
possibility  that  a  physician  could  be  liable  for   conduct
committed  during an IME that is both tortious and not  dependent
upon  a physician-patient relationship.  Indeed, at oral argument
before the superior court, Dr. Radeckis counsel acknowledged that
an IME physician has a duty to act carefully and reasonably.  But
the  absence  of  a physician-patient relationship  is  fatal  to
Smiths medical malpractice claims.

     32    Smith does not argue on appeal that the superior court
erred by treating all of his original claims as a single count of
medical  malpractice without explanation, nor did he  argue  this
point  below.   It  would have been preferable for  the  superior
court  to  address Smiths claims individually or memorialize  its
implied  conclusion  that  all  of Smiths  claims  are  variously
phrased  medical malpractice claims.  But because our independent
review  of  the record leads us to conclude that Smiths complaint
was correctly interpreted as asserting multiple claims of medical
malpractice,  the  superior courts error  was  harmless  in  this
instance.

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