2021 UT 41

IN THE

SUPREME COURT OF THE STATE OF UTAH

JEREMY KIRK,

Appellant,

v.

MARK ANDERSON, M.D., and BROADSPIRE SERVICES, INC.,

Appellees.

No. 20191020

Heard March 8, 2021

Filed August 5, 2021

On Direct Appeal

Third District, Salt Lake

The Honorable Barry G. Lawrence

No. 190905655

Attorneys:

Leonard E. McGee, Peter R. Mifflin, Sandy, for appellant

Michael J. Miller, Katheleen Abke, Salt Lake City, for appellee 

Mark Anderson

Ford G. Scalley, Bradley W. Madsen, Scarlet R. Smith, Salt Lake

City, for appellee Broadspire Services, Inc.

JUSTICE HIMONAS authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE 

PEARCE, and JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 The aftermath of a vehicle accident that left appellant,

Jeremy Kirk, with numerous injuries leads us to contemplate 

whether a physician performing an independent medical 

examination (IME) owes a duty of care to an examinee. We 
KIRK v. ANDERSON

Opinion of the Court

2

decline Kirk‘s invitation to announce such a broad and

uncompromising duty, basing our decision primarily on 

important policy considerations relevant to the duty analysis.

1 As 

such, we affirm the district court‘s grant of appellees‘ motion to 

dismiss.

BACKGROUND

¶2 This case arises from a car accident that occurred on 

April 16, 2015. Appellant, Jeremy Kirk, was rear-ended by another 

driver while stopped at a stoplight. At the time of the accident, 

Kirk was in the course and scope of his employment with Park 

City Plumbing. After the accident, Kirk drove himself home. Later 

the same day, he visited a hospital, complaining that his ―whole 

left side hurt.‖ In the ensuing months, Kirk received diagnostic 

imaging and treatment for a number of symptoms allegedly

caused by the collision.

¶3 Because this accident occurred on the job, Kirk made a 

claim for workers‘ compensation benefits through Park City 

Plumbing. Park City Plumbing had contracted with American 

National Property & Casualty as its workers‘ compensation 

insurance carrier. Broadspire Services, Inc. is a third-party 

administrator of American National Property & Casualty and, as 

such, coordinates claims between the insurer and claimants. Kirk 

was one such claimant whose claim was coordinated by 

Broadspire.

¶4 Broadspire—through Genex Services, LLC—ultimately 

arranged for an IME of Kirk‘s injuries for the purpose of 

evaluating the workers‘ compensation claim, retaining Doctor 

Mark Anderson to perform this evaluation. In October 2016, 

Anderson conducted his evaluation of Kirk‘s injuries by both 

meeting with Kirk and reviewing Kirk‘s medical records. 

Anderson‘s report was returned to Genex in November 2016.

¶5 Anderson‘s report concluded that the accident caused 

Kirk to suffer a transient cervical strain and that all other 

symptoms that Kirk complained of or had been treated for since 

the accident were secondary to pre-existing conditions. Building 

upon that conclusion, Anderson further concluded that Kirk:

__________________________________________________________

1 We expressly leave open, however, the possibility that an

independent medical examiner may owe an examinee limited 

duties not implicated by the facts of this case. See infra ¶¶ 9, 25

n.12.
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Opinion of the Court

3

could return to work with only the limitation of his pre-existing 

arthritis; had achieved maximum medical improvement on April 

19, 2015, three days after the accident; should be released from 

care with no restrictions; and did not qualify for an impairment 

rating apportionable to the work-related accident. As a result of 

the IME report, Broadspire denied Kirk various forms of workers‘ 

compensation benefits. Anderson‘s report also noted, importantly, 

that he had ―informed [Kirk] that as this was an Independent 

Medical Evaluation, [Anderson] would not be giving [Kirk] 

medical advice[,] . . . [they] were not establishing a doctor/patient 

relationship, and [Anderson] would not become [Kirk‘s] treating 

physician in the future.‖

¶6 Kirk disagreed with Anderson‘s conclusions and filed an 

application for a hearing before the Utah Labor Commission. 

Three years after the accident, the Utah Labor Commission 

determined that the 2015 accident caused ―a left knee ACL tear; 

aggravation of pre-existing L4-S1 spine degeneration; temporary 

cervical whiplash; and a mild concussion.‖ The Commission then 

ordered ―that Park City Plumbing and/or American National 

Property & Casualty . . . pay Jeremy Kirk‘s historical medical 

expenses for services provided in relation to his April 16, 2015 

industrial accident.‖

¶7 Kirk then filed a complaint in district court alleging 

negligence and reckless conduct against Anderson and vicarious 

liability against Broadspire for Anderson‘s conduct. Kirk alleged 

various injuries stemming from the delay in proceedings caused 

by the allegedly erroneous IME.2 Broadspire moved to dismiss 

based on the theory that Anderson did not owe Kirk a duty of 

care because no physician-patient relationship exists in the context 

of an IME. Thus, Broadspire argued, it could not be vicariously 

liable for the alleged negligence. Anderson later joined 

Broadspire‘s motion. The district court heard argument from each 

of the three parties and ultimately granted the motion to dismiss 

based upon two Utah cases: Joseph v. McCann, 2006 UT App 459, 

147 P.3d 547, and B.R. ex rel. Jeffs v. West, 2012 UT 11, 275 P.3d 228. 

__________________________________________________________

2 Specifically, Kirk complains that: he suffered ―delayed or 

denied payments of medical expenses, delayed or denied 

payments of temporary disability payments, [and] delayed or 

denied payments of permanent disability payments‖; the delay 

―unnecessarily prolonged and aggravated‖ his ―mental and 

emotional pain and suffering arising from the accident‖; and he 

had to hire experts to rebut the IME.
KIRK v. ANDERSON

Opinion of the Court

4

The district court reasoned that these two cases, taken together,

stand for the proposition that a health care provider who is 

conducting an IME doesn‘t owe an actionable duty of care to the 

person being evaluated. Kirk appeals on the grounds that the 

district court misinterpreted McCann and Jeffs. We have 

jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶8 ―We review the grant of a motion to dismiss for 

correctness, granting no deference to the decision of the district 

court.‖ Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275.

ANALYSIS

¶9 The question before us is whether the district court erred 

in finding that an independent medical examiner owes no duty of 

care to an examinee. Kirk lodges two separate bases for 

establishing a duty in such circumstances: first, that a limited 

physician-patient relationship exists between examiners and 

examinees; and second, that, even absent a physician-patient 

relationship, a health care provider owes a limited duty to a nonpatient arising from the provider‘s affirmative act. We reject 

Kirk‘s first argument in full because (1) he appears to 

misunderstand the purpose of an IME, and (2) no express or 

implied contract to provide treatment existed between Kirk and 

Anderson. As for Kirk‘s second argument, though we don‘t 

disagree that a duty may exist between a health care provider 

performing an IME and an examinee in certain circumstances, we 

find that it doesn‘t extend to harm claimed to have been suffered 

as a result of a delay in legal proceedings3 occasioned by the 

health care provider‘s alleged negligent act. As such, we affirm 

the trial court‘s dismissal of Kirk‘s complaint for failure to state a 

claim.

__________________________________________________________

3 By ―delay in proceedings,‖ we mean a delay in any process 

by which the injured person stands to gain a potential benefit. 

Here, we use it to refer to the workers‘ compensation process, 

which was supposedly delayed due to Anderson‘s alleged 

misrepresentation, causing Kirk to pursue a separate examination 

by the Utah Labor Commission. The term may also refer, for 

example, to a delay in litigation, such as when an expert‘s opinion 

results in a denial of summary judgment, requiring the plaintiff to 

continue litigation in trial.
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Opinion of the Court

5

I. A PHYSICIAN-PATIENT4 RELATIONSHIP DOES NOT EXIST 

HERE

¶10 We begin with Kirk‘s first argument in favor of finding a 

duty, which we reject outright. Kirk argues that independent 

medical examiners owe examinees a duty of care due to the 

existence of a special relationship, specifically in the workers‘ 

compensation context. In response, appellees point us to the court 

of appeals‘ holding in Joseph v. McCann, arguing that it stands for 

the principle that ―a physician who is retained by a third party to 

conduct an examination of another person and report the results 

to the third party does not enter in a physician-patient 

relationship with the examinee.‖ See 2006 UT App 459, ¶ 15, 147 

P.3d 547 (quoting Ervin v. Am. Guardian Life Assurance Co., 545 

A.2d 354, 357 (Pa. Super. Ct. 1988)). And while McCann, as a 

determination by the court of appeals, is not binding authority, 

we find its reasoning persuasive and adopt it here. Kirk doesn‘t

refute McCann‘s holding (for purposes of his first argument) but 

challenges its application to the facts before us. We disagree with 

his challenge. 

¶11 ―The existence of a physician-patient relationship 

between a physician and an individual can only be recognized 

when the individual is in fact a patient.‖ Id. ¶ 12. The question 

here, then, is not whether an independent medical examiner may 

be considered a physician, but rather who may be considered a 

patient. McCann cites to the Utah Health Care Malpractice Act in 

providing an answer:

[A patient is defined as] ―a person who is under the 

care of a health care provider, under a contract, 

express or implied.‖ Health care is defined as ―any act 

__________________________________________________________

4 We use the terms ―physician‖ and ―health care provider‖ 

interchangeably throughout this opinion. ―Physician‖ has 

typically been used in our case law to refer to the special 

relationship between a medical professional and patient—as such, 

we continue to employ the term ―physician-patient relationship.‖

But we emphasize that ―health care provider‖ is a more inclusive 

term as it refers to a broader population of medical professionals 

including, for example, nurses and psychotherapists, who are also 

subject to duties arising from special relationships with patients. 

See, e.g., UTAH CODE § 78B-3-403(12) (providing a list of ―health 

care providers‖ who may be subject to medical malpractice 

liability arising from a special relationship).
KIRK v. ANDERSON

Opinion of the Court

6

or treatment performed or furnished . . . by any health 

care provider for, to, or on behalf of a patient during 

the patient‘s medical care, treatment, or 

confinement.‖

Id. (second alteration in original) (citations omitted) (quoting 

UTAH CODE ANN. § 78-14-3(22) & (10) (Supp.2006)).

5 McCann

further states that a physician-patient relationship exists ―if the 

professional services of a physician are accepted by another 

person for the purposes of medical . . . treatment. This 

relationship is consensual, and one in which the patient 

knowingly seeks the assistance of a physician and the physician 

knowingly accepts him as a patient.‖ Id. (alteration in original) 

(citation omitted) (internal quotation marks omitted). One rule 

that the McCann court distilled from these authorities was that, to 

be considered a patient, a plaintiff must have been evaluated for 

or provided treatment. See id. ¶ 13. But the analysis didn‘t stop 

there. To establish a physician-patient relationship, an express or 

implied contract must exist, and such a contract arises from what 

might be characterized as a bargained-for exchange, with 

consideration, between a plaintiff seeking treatment and a 

physician providing treatment. See id. (―Because [plaintiff] did not 

seek treatment from [defendant], nor did [defendant] provide 

treatment to [plaintiff], [defendant] was not under an express or 

implied contract to provide health care to [plaintiff]. Thus, no 

physician-plaintiff relationship existed . . . .‖).

¶12 Kirk doesn‘t appear to disagree with the first part of this 

reasoning, as he acknowledges the plaintiff in McCann had been 

evaluated solely to determine his fitness as a police officer, and 

the examiner ―never contemplated providing any sort of care or 

treatment to‖ the plaintiff. Rather, Kirk argues that McCann

doesn‘t apply ―[i]n the worker‘s [sic] compensation context, 

[where] providing necessary treatment and care . . . is one of the 

principal aims.‖

¶13 We very much disagree with Kirk‘s view of the purpose 

of an IME in a workers‘ compensation claim. As with evaluations 

of the fitness of an examinee for a particular occupation, see 

McCann, 2006 UT App 459, an IME of an allegedly injured 

__________________________________________________________

5 The Utah Health Care Malpractice Act has since been 

renumbered to section 78B-3-401–426, with ―patient‖ defined at 

subsection 403(23) and ―health care‖ defined at subsection 

403(10).
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Opinion of the Court

7

employee for workers‘ compensation purposes is, generally 

speaking, not performed for the purpose of providing treatment. 

Rather, the purpose of an IME, in the workers‘ compensation 

setting, is to provide the carrier, and potentially the relevant fact 

finder, with independent information on the claimant‘s injuries. 

See KENNETH J. BROWNLEE & PATRICK MAGARICK, 1 CASUALTY 

INSURANCE CLAIMS § 7:13 (4th ed. 2021) (―An  ̳independent‘ 

medical examination is exactly that—it involves no treatment . . . . 

IMEs should be utilized . . . [t]o help determine if the alleged 

injuries or disability resulted from the accident giving rise to the 

claim, and to corroborate the injuries claimed.‖); Dyer v. 

Trachtman, 679 N.W.2d 311, 315 (Mich. 2004) (―In the 

particularized setting of an IME, the physician‘s goal is to gather 

information for the examinee or a third party for use in 

employment or related financial decisions. It is not to provide a 

diagnosis or treatment of medical conditions.‖); Reagan v. Newton, 

436 P.3d 411, 419 (Wash. Ct. App. 2019) (noting that the 

relationship between an independent examiner and examinee 

―does not involve the full panoply of the physician‘s typical 

responsibilities to diagnose and treat the examinee for medical 

conditions‖ (quoting Dyer, 679 N.W.2d at 314–15)); Boulevard 

Multispec Med., P.C. v. Tri-State Consumer Ins. Co., 43 Misc.3d 802, 

805 (N.Y. D. Ct. 2014) (―[T]he purpose of an IME . . . is to permit 

the insurer to determine the nature and extent of the injured 

party‘s injuries, whether the injured party needs additional 

treatment or testing for those injuries and for how much longer 

such treatment might be needed.‖).

¶14 Even if Kirk were correct in arguing that workers‘ 

compensation‘s ―sole purpose for being is to provide injured 

workers‘ necessary and reasonable medical care‖ (and he is not),

his argument would nonetheless fail. We agree with McCann‘s 

holding that, in addition to treatment, there must be an ―express 

or implied contract to provide health care‖ between the parties. 

McCann, 206 UT App 459, ¶ 13. No such contract existed between 

Kirk and Anderson. Notably, during the IME, Anderson 

―informed [Kirk] that [they] were not establishing a 

doctor/patient relationship.‖6 And even if this express disclaimer 

__________________________________________________________

6 An implicit contract formed by an actual bargained-for 

provision of treatment may, however, defeat an express waiver of 

a physician-patient relationship. As such, we find it important to 

note that Anderson‘s express disclaimer is not a per se waiver of a 

special relationship, but it does serve as an indication of 

(continued . . .)
KIRK v. ANDERSON

Opinion of the Court

8

were insufficient, the facts provide further support. Kirk did not 

―knowingly seek[] the assistance of a physician,‖ id. ¶ 12 (citation 

omitted)—to the contrary, Kirk admits that he ―was required to 

submit‖ to an IME ―by a provider of Broadspire‘s choice.‖ And 

Anderson did not ―knowingly accept[] [Kirk] as a patient,‖ id.

(citation omitted), but rather agreed with Genex to conduct an 

IME for an employee of Park City Plumbing, who carried 

workers‘ compensation insurance under American National 

Property & Casualty, who in turn contracted with Broadspire to 

act as a third-party administrator, who hired Genex. This tortuous 

path from Kirk to Anderson dispels any suggestion that even an 

implicit contract existed between them. 

II. HEALTH CARE PROVIDERS OWE NO DUTY FOR INJURIES 

FLOWING FROM A DELAY IN PROCEEDINGS

¶15 We now turn to Kirk‘s second argument in favor of 

finding a duty, which relies on our holding in B.R. ex rel. Jeffs v. 

West, 2012 UT 11, 275 P.3d 228. He argues that, absent a physicianpatient relationship, a health care provider nonetheless ―owe[s] a 

duty of care arising from his own affirmative conduct.‖ And he 

insists that the district court erroneously dismissed his claim for 

want of a legal duty under Jeffs. While we agree with Kirk that,

under Jeffs, ―non-patients are not categorically barred from 

seeking redress for malpractice committed by Utah healthcare 

providers,‖ we nevertheless conclude that Jeffs doesn‘t extend to 

the circumstances in this case. Specifically, we decline to find a 

duty where, as here, the harms allegedly caused by the health care 

provider in providing an IME flow from a delay in proceedings.7

We reach this conclusion based on the policy-based fifth factor of 

the Jeffs test. We begin with a brief overview of the Jeffs test and 

then explain why we decline to find such a duty here.

 

Anderson‘s intent to merely perform an IME on behalf of his 

employer and not to enter into a physician-patient relationship 

with Kirk.

7 The one harm Kirk claims that arguably does not flow from a 

delay is the alleged cost of hiring an expert to rebut the IME. 

Rather than aid Kirk‘s argument, this allegation further cements 

our view that creating a duty along the lines Kirk suggests would, 

as we explain below, infra ¶¶ 22–23, greatly jeopardize the use of 

experts in litigation and other proceedings.
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Opinion of the Court

9

A. The Jeffs Test

¶16 Kirk is correct in arguing that a physician-patient 

relationship is not a ―categorical predicate‖ in bringing a medical 

malpractice action.8In Jeffs, we recognized that ―a special 

relationship or physician-patient relationship need not underlie 

the defendants‘ duty to the plaintiffs‖ when a nurse had 

negligently prescribed a cocktail of medications to a patient, 

causing a violent outburst in the patient that culminated in the 

murder of the patient‘s wife. Jeffs, 2012 UT 11, ¶¶ 2, 19. In 

recognizing that such a duty may exist, we synthesized a 

balancing test from factors previously identified in our case law 

that serves as a limiting principle for all unintentional tort actions 

(not just those between a health care provider and non-patient). 

So, in determining whether a defendant owes a duty to a plaintiff, 

we consider:

(1) whether the defendant‘s allegedly tortious 

conduct consists of an affirmative act or merely an 

omission; (2) the legal relationship of the parties; 

(3) the foreseeability or likelihood of injury; (4) public 

policy as to which party can best bear the loss 

occasioned by the injury; and (5) other general policy 

considerations.

Id. ¶ 5 (citations omitted) (internal quotation marks omitted). And 

because we recognized that ―[n]ot every factor is created equal,‖ 

we characterized the first two factors as ― ̳plus‘ factor[s]—used to 

impose a duty where one would otherwise not exist,‖ and the 

latter three factors as ― ̳minus‘ factors—used to eliminate a duty 

that would otherwise exist.‖ See id.

¶17 Before moving on, we take this opportunity to express 

what has been implied by our developing case law following Jeffs: 

The third factor regarding foreseeability has since taken on an 

elevated role in this court‘s duty analyses, represented in both 

Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 44, 356 P.3d 1172, and 

__________________________________________________________

8 To the extent that Kirk argues ―[t]he trial court erroneously 

require[ed] a traditional doctor-patient relationship as a necessary 

factual predicate to a medical malpractice action,‖ we disagree, 

finding this conclusion to be a misreading of the trial court‘s

order. The trial court contemplated the application of Jeffs in the 

absence of a physician-patient relationship and ultimately 

determined that no legal duty existed. See Order granting Mot. to 

Dismiss, Kirk v. Anderson, 4–5, No. 190905655 (Nov. 15, 2019).
KIRK v. ANDERSON

Opinion of the Court

10

Herland v. Izatt, 2015 UT 30, ¶ 14, 345 P.3d 661. See also Boynton v. 

Kennecott Utah Copper, LLC, 2021 UT 40, ¶ 21, -- P.3d --. As such, 

we now formally acknowledge that it may be used as a ―plus‖

factor in Jeffs analyses, and we may rely upon it in imposing ―a 

duty where one would otherwise not exist.‖ Jeffs, 2012 UT 11, ¶ 5.

¶18 Though considered ―minus‖ factors, the final two Jeffs

factors are certainly important. Thus, even if the ―plus‖ factors are 

present, these ―minus‖ factors may nonetheless carry the day if 

the underlying policy considerations outweigh the factors 

indicating the existence of a duty. See, e.g., Nixon v. Clay, 2019 UT 

32, ¶ 15, 449 P.3d 11. Our analysis today focuses on the fifth Jeffs

factor, which ultimately carries the day in determining that a duty 

does not exist in this case.

¶19 The fifth Jeffs factor acts as a catch-all under which we‘ve 

considered a range of public policy concerns both within the 

health care malpractice field and beyond. See Jeffs, 2012 UT 11 

¶¶ 33–35 (dismissing defendants‘ argument that ―recognition of a 

physician‘s duty to nonpatients will diminish the availability of 

prescription medications‖); id. ¶ 36 (dismissing defendants‘ 

argument that recognition of a duty will impact ―malpractice 

insurance and healthcare costs‖); id. ¶¶ 37–38 (dismissing 

defendants‘ arguments that recognition of a duty ―will interfere 

with confidentiality in physician-patient relationships‖ and will 

―conflict with the physicians [sic] duty of loyalty to her patient‖); 

id. ¶ 39 (recognizing ―the complexity of the medical professional‘s 

sphere of judgment‖ but finding that such complexity doesn‘t

always supersede ―professional responsibility for negligence‖ and 

that ―a  ̳complex universe of patient care‘ does not make injured 

nonpatients‘ injuries any less troubling‖); see also Nixon, 2019 UT 

32, ¶ 23 (rejecting a finding of tort liability in ―high-contact 

sports‖ because otherwise ―the majority rule could impose 

liability on players for simply playing the game as it is designed

and expected to be played‖); Mower v. Baird, 2018 UT 29, ¶ 31–36, 

422 P.3d 837 (finding defendants‘ policy argument that 

recognition of a duty to the parents of a minor patient ―would 

 ̳chill‘ a therapist‘s treatment of a minor child‘s sexual abuse 

trauma‖ was insufficient to reject a categorical duty but warranted 

a limitation on the duty); Scott, 2015 UT 64, ¶¶ 47–49 (balancing 

the public policy concerns favoring prison rehabilitative programs 

―with the tort law policy of compensating injured parties‖).
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Opinion of the Court

11

B. Public Policy Disfavors a Duty for Injuries Flowing from a Delay in 

Proceedings

¶20 Our decision today contemplates the circumstance in 

which an expert9 allegedly causes a delay in proceedings, and a 

plaintiff alleges injury as a result of that delay. Following the Jeffs 

test in order, one might feel compelled to first answer whether the 

facts satisfy the ―plus‖ factors in recognizing a duty between 

Anderson and Kirk. Maybe they do, maybe they don‘t. The 

answer to this question, however, is of no moment because we 

find that, if we address the ―minus‖ factors—in particular, the 

fifth factor— first, the underlying policy considerations weigh 

strongly in favor of imposing no duty. Thus, we assume for 

purposes of our analysis that the Jeffs ―plus‖ factors—that is, an 

affirmative act with foreseeable harms—exist in this case.

¶21 In addressing the fifth Jeffs factor, the general public 

policy considerations that lead us to our conclusion are: (1) there 

is no limiting principle that would prevent the chilling of expert 

involvement in disputes if we were to accept Kirk‘s argument that 

health care providers owe a duty of care in performing IMEs;

(2) experts play a crucial role in all manner of proceedings in 

providing unbiased expertise and preserving trust relationships;

and (3) experts typically have no special relationship with the 

subject of their examination, analysis, or opinion, but rather a 

contractual relationship with their client.

10

__________________________________________________________

9 We use the term ―expert‖ to refer to a witness upon whose 

opinion a party relies in order to obtain a benefit or to present a 

defense. Here, the expert is a physician serving as an independent 

medical examiner. It may also include, for example, an expert 

witness called to testify at trial.

Additionally, the experts we contemplate in this opinion do 

not include experts hired by the party alleging injury, but rather 

court-appointed experts, opposing-party experts, and 

independent medical examiners. For the ease of the reader, all 

references to experts in this opinion exclude experts employed by 

the injured party.

10 We note, importantly, that nothing in this opinion alters the 

tort and contractual duties that may be owed by an expert to their 

client. See infra ¶ 25 n.12. This opinion specifically addresses 

experts not hired by the party alleging harm, such as independent 

medical examiners, court-appointed experts, and opposing party‘s 

experts. See supra ¶¶ 9 n.3, 20 n.9.
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Opinion of the Court

12

¶22 We address each of these policy arguments in turn as we 

determine whether an expert owes a duty of care to a party in a 

legal matter to not cause a delay in proceedings. Our overarching 

concern today is that there is no clear limiting principle that 

would prevent experts across the board from becoming liable 

when their professional opinions cause delays in proceedings. For 

example, an expert, or even a private insurance adjuster, asked to 

testify at a mediation hearing could be liable for giving testimony 

that delays a party‘s relief. We are deeply concerned that this 

liability would chill or suppress honest and unfettered expert 

opinions, which have significant societal value. And we are not 

alone in this concern. For example, the Supreme Court of 

Michigan noted the ―unacceptable risk‖ of chilling expert 

testimony in imposing liability. Dyer v. Trachtman, 679 N.W.2d 

311, 315–16 (Mich. 2004) (―To permit such an action would make it 

impossible to find any expert witness willing to risk a lawsuit 

based on his testimony as to his opinions and conclusions . . . .‖ 

(quoting Hafner v. Beck, 916 P.2d 1105, 1108 (Ariz. Ct. App. 1995)));

see also Smith v. Radecki, 238 P.3d 111, 115 (Alaska 2010) (noting 

that courts that have declined to find a duty in the IME context 

―rely principally upon the desire not to chill the willingness of 

doctors to act as expert witnesses in workers‘ compensation 

cases‖); Martinez v. Lewis, 969 P.2d 213, 219 (Colo. 1998) (en banc)

(warning that ―physicians would be less likely to perform IMEs 

altogether given the liability risks‖).

¶23 Next, experts serve a critical role in proceedings as 

sources of unbiased expertise. This service facilitates the 

relationships between parties without otherwise conflicting 

interests—relationships which carry their own societal value. For 

example, though not to be conflated with health care providers 

engaged in physician-patient relationships, independent medical 

examiners do play a vital role in the overall administration of

health care benefits and workers‘ compensation benefits. In these 

situations, the independent medical examiner offers an unbiased 

opinion assessing specifically whether the patient‘s work-related 

injury requires treatment, while the injured person‘s own health 

care provider is able to administer care without influence by 

insurance companies (thus preserving the provider‘s loyalty to the 

patient and the patient-provider trust dynamic)—patients enjoy 

unbiased care while the insurance companies still benefit from the 

opinions of medical professionals. See Shanil Ebrahim et al.,

Commentary, Ethics and Legalities Associated with Independent 

Medical Evaluations, 186 CANADIAN MED. ASS‘N J. 248, 248 (2014) 

(noting that, in traditional physician-patient relationships, health 
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Opinion of the Court

13

care providers may be held liable for damages if they don‘t 

appear to act in the patients‘ best interests); see also Lydon v. 

Sprinkler Servs., 841 A.2d 793, 795–96 (Me. 2004) (noting that IMEs 

serve ―to prevent  ̳doctor shopping‘ and reduce litigation‖). 

Recognizing a duty owed by an independent medical examiner 

has the potential to disrupt this valuable system.

¶24 It is also important to note the purpose of an IME in 

addressing related public policy concerns. As stated above, supra

¶ 13, the purpose of an IME in the workers‘ compensation context 

is to identify injuries caused by work-related accidents to 

determine benefits owed. An IME, in other words, is just one step 

in the workers‘ compensation process, a process that contains its 

own safeguards against delays in payment of benefits. See 

Gunderson v. May Dep’t Stores Co., 955 P.2d 346, 352 (Utah Ct. App. 

1998) (noting that the Utah Workers‘ Compensation Act ―provides 

specific remedies‖ for delays in payment). There is no need, then, 

to subject a third party to liability in order to provide an injured 

party with an extra remedy—particularly not when this belt-andsuspenders approach could have the adverse effect of chilling 

expert testimony.

¶25 Finally, an independent medical examiner has a 

contractual relationship with the entity that employs them but no 

preexisting relationship with the subject of the examination. And 

this contractual relationship is often independent of, if not 

adverse to, the subject‘s relationship with the examiner‘s 

employer. To impose a categorical duty of care running from the 

independent medical examiner to the subject would put the 

examiner in an untenable position, if not create an outright 

conflict of interest. See, e.g., J.R. Shepherd, Physician giving medical 

examination to insurance applicant as agent of insured or of insurer, 94 

A.L.R.2d 1389, § 2[a] (1964) (―[A] physician who examines 

applicants for insurance . . . is generally recognized as being the 

agent of the insurer, and not the insured . . . .‖);11 Joseph v. 

McCann, 2006 UT App 459, ¶ 14, 147 P.3d 547 (noting that the 

independent medical examiner owed a duty to the city because he 

had ―contracted with the City to provide an IME of‖ the plaintiff). 

We need not discuss today the parameters of the standard of care 

__________________________________________________________

11 We do not mean to suggest that all independent medical 

examiners are agents of the insurer in Utah. We cite to this 

American Law Report merely as support in our policy analysis. 

Whether an independent medical examiner would qualify as an 

agent of the insurer is a question for another day.
KIRK v. ANDERSON

Opinion of the Court

14

owed by an independent medical examiner to their hiring 

insurer—that question is not before us. But we can safely say that

an independent medical examiner who has otherwise conducted 

an IME in good faith and has met their standard of care has 

fulfilled their duty, regardless of whether the results were 

favorable to the insurer or to the IME subject. Thus, if we are to 

assume the facts before us favor a duty under the Jeffs ―plus‖

factors, we nonetheless find that policy considerations favor no 

duty owed by an expert whose professional opinion causes a 

delay in legal proceedings. So, even if Anderson‘s IME report 

constituted an affirmative act with foreseeable harms, he is not 

liable for Kirk‘s injuries resulting from the delay in the workers‘ 

compensation proceedings.12

__________________________________________________________

12 None of this is to suggest that there are no circumstances in

which an independent medical examiner would owe a duty of care

to an examinee. In fact, this court noted that examiners must 

―avoid affirmatively causing physical injury‖ during an IME. Jeffs, 

2012 UT 11, ¶ 17. Put another way, Jeffs stands for the proposition 

that the ―duty would be as obvious as the ensuing injuries‖—that 

is, the use of ―a scalpel instead of a tongue depressor to facilitate a 

throat examination‖ would be an affirmative act with foreseeable 

harms giving rise to a duty, id. ¶ 17, while an IME report alone is 

not.

And Jeffs wasn‘t the only time this court specifically 

contemplated an affirmative act with foreseeable harms in the 

physician-nonpatient context. In Mower, we held that a mental 

health therapist has a duty ―to refrain from recklessly causing a 

nonpatient parent physical harm to his or her body or property or 

severe emotional distress by giving rise to false memories or 

fabricated allegations of sexual abuse committed by that parent 

through affirmative acts when treating the parent‘s minor child.‖ 

2018 UT 29, ¶ 113. We also find illuminating the Michigan case 

cited in Anderson‘s brief in which the court found a limited duty 

where an independent medical examiner negligently caused 

further injury to the examinee by over-rotating the examinee‘s 

injured shoulder. Dyer, 679 N.W.2d 311. The Supreme Court of 

Michigan identified an affirmative act with a foreseeable harm in 

the actual performance of an IME and held that a duty exists ―to 

exercise care consistent with [the independent medical 

examiner‘s] professional training and expertise so as not to cause 

physical harm by negligently conducting the examination.‖ Id. at 

317.
Cite as: 2021 UT 41

Opinion of the Court

15

CONCLUSION

¶26 Today is a reminder of the powerful role public policy

considerations can appropriately play in our judicial system. In 

cases such as this, it is our duty, as judges, to consider public 

policy to determine whether the societal cost of a legal 

intervention, such as tort liability, outweighs its social utility. 

Because we find those costs too high today, we affirm the district 

court‘s grant of appellees‘ motion to dismiss.