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Negligence: Independent Medical Exam – Health Care Affidavit – Doctor-Patient Relationship

Where a plaintiff, who underwent an independent medical examination for an unrelated personal injury suit, sued the doctor who conducted the examination for assault and battery, arguing that the doctor injured him when moving his arm, dismissal of the action is affirmed based on the plaintiff’s failure to file the required health care affidavit because the court finds that the plaintiff and the examining doctor, despite the lack of treatment, had a limited physician-patient relationship, and the plaintiff’s true claim was medical malpractice since he failed to plead that the doctor touched him without consent to plead a battery claim, and he also failed to allege the necessary elements of assault.

Not a patient; no consent

Dissenting opinion by Teitelman, J.: “Mr. Devitre was not under the care and treatment of Dr. Rotman nor was Mr. Devitre a ‘client’ of Dr. Rotman. Dr. Rotman examined Mr. Devitre at the request of the defendant in an adversarial legal proceeding. There was no confidentiality or expectation of confidentiality. Although the principal opinion notes that Mr. Devitre consented to the examination, in reality, Mr. Devitre had no real choice….

“The sum and substance of Mr. Devitre’s petition is precisely what he alleged, that he was battered and assaulted. Mr. Devitre alleged that Dr. Rotman’s manipulation of his arm hurt, and he told Dr. Rotman ‘don’t press on me’ and ‘don’t do that doctor.’ The most plausible way to read these allegations is to conclude that Mr. Devitre wanted Dr. Rotman to stop manipulating his arm. ‘Don’t do that’ clearly meant ‘don’t [manipulate my arm].’ Mr. Devitre’s allegations clearly reflect that he did not consent any further manipulation of his arm by Dr. Rotman.

Mr. Devitre also pleaded an assault claim. The principal opinion faults him for not pleading apprehension. If someone tells another to stop hurting him, it seems apparent that the reason for the statement is that the person is in apprehension of further harm.”

Judgment is affirmed.

Devitre v. The Orthopedic Center of Saint Louis, LLC (MLW No.62369/Case No. SC90835 – 17 pages) (Supreme Court of Missouri, Breckenridge, J.; Price, C.J., Russell, Wolff, Fischer and Stith, JJ., concur. Teitelman, J., dissents in separate opinion filed) Appealed from circuit court, St. Louis County, Goldman, J. (James S. Collins II, St. Louis, for appellant) (Robert J. Amsler Jr. and David I. Hares, St. Louis, for respondents).

Read the full text of this opinion.