20 2 1 UT 41

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

J EREMY K IRK

, Appellant

,

v.

M ARK A NDERSON
, M.D.

, and B ROADSPIRE S ERV ICES
, I NC

. , Appellee s

.

No. 20 191020
Heard March 8 , 20 21
Filed August 5, 202 1

On Direct Appeal

Third District

, Salt Lake
The Honorable Barry G. Lawrence

No. 1 90905655

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.

J USTICE H IMONAS authored the opinion of the Court, in which

C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE L EE , J USTICE

P EARCE
, and J USTICE P ETERSEN joined.

J USTICE H IMONAS , opinion of the Court:

INTRODUCTION

¶1 The aftermath of a vehicle accident that left a ppellant

, Jeremy Kirk

, with numerous injuries leads us to contemplate
whether a physician performing a n independent medical

exam ination (IME) owes a duty of care to an examinee. WeK IRK v. A NDERSON
Opinion of the Court

2 decline Kirk‘s invitation to announce such a broad and

un compromising duty, basing our de cision primarily on important policy considerations relevant to the duty analysis

. 1 As such, we affirm the district court‘s grant of a ppellees‘ motion to
dismiss.

BACKGROUND

¶2 This case arises from a car accident that occurred on April 16, 2015. A ppellant

, Jeremy Kirk

, was rear

- ended by another driver while stopped at a stoplight. At the t ime of the accident, Kirk was in the course and scope of his employment with Park City Plumbing. After the accident, Kirk drove himself home

. L ater the same day, he visited a hospital

, complaining that his ―whole left side hurt.‖ In the ensuing months, Kir k received diagnostic imaging and treatment for a number of symptoms alleged ly 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 contr acted with American National Property & Casualty as its workers‘ compensation insurance carrier. Broadspire Services, Inc. is a third

- party
administ rator of American National Property & Casualty and

, as such

, coordinates claims between the insurer and clai mants. 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 Ander son 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 conclu ded that Kirk :

__________________________________________________________

1 We expressly leave open, however, the possibility that an independent medical examiner may owe an examinee limited
dut ies not implicated by the facts of this case. See infra ¶ ¶ 9 , 2 5

n.1 2

.Cite as: 20 2 1 UT 41

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 ac cident 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 Jere my 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 Broa dspire 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

- p atient 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 ult imately 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.K IRK v. A NDERSON
Opinion of the Court

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

, stand for the prop osition that a health care provider who is conducting an IME does n‘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 questi on 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 rela tionship exists between examiners and examinees; and second, that, even absent a physician

- patient relationship, a health care provider owes a limited duty to a non

patient arising from the provider‘s affirmative act. We reject Kirk‘s first argument in ful l 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 do n‘ 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 does n‘t ex tend to harm claimed to have been suffered
as a result of a delay in legal proceedings 3 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 allege d 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 plainti ff to continue litigation in trial.Cite as: 20 2 1 UT 41

Opinion of the Court

5 I

. A PHYSICIAN

- PATIENT 4 RELATIONSHIP DOES NO T EXIST

HERE

¶10 We begin with Kirk‘s first argument in favor of finding a duty, which we reject outright. Kirk a rgues 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, a ppelle e s point us to the court of appeals‘ holding in Joseph v. McCann

, a rguing 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 does n‘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 medica l 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 . ― P hysician‖ 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 p sy chotherapists , who are also subject to duties arising from special relationships with patients. See, e.g.

, U TAH C ODE § 78B

- 3

- 403(12) (providing a list of ―health care providers‖ who may be subject to medical malpractice liability arising from a special rel ationship).K IRK v. A NDERSON
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

U TAH C ODE A NN . § 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 se eks 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 con sidered a patient, a plaintiff must have been evaluated for or provided treatment. See i d. ¶ 13. But the analysis d idn‘t stop there. To establish a physician

- patient relationship, an express or implied contract must exist, and such a contract arises from w hat 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

treatm ent 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 does n‘t appear to disagree with the first part of this reasoning, as he ac knowledges 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 t he 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

- 40 1

– 426 , with ―patient‖ defined at

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

403 (10).Cite as: 20 2 1 UT 41

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 K ENNETH J. B ROWNLEE & P ATRICK M AGARICK
, 1 C ASUALTY
I NSURANCE C LA IMS § 7:13 (4th ed. 2021 ) (―An  ̳independent‘ medical examination is exactly that

— it involves no treatment .

. . . IMEs should be u tilized

. . . [t]o help determine if the alleged injuries or disability resulted from the accident giving rise to the claim, a nd 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 finan cial 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 purp ose 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 w ere 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 ad dition 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 . N otably, 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

pr ovision 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 o f (continued

. . .)K IRK v. A NDERSON
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, Ki rk 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 suggestio n that even an implicit contract existed between the m

.
II

. HEALTH CARE PROVIDER S OWE NO DUTY FOR INJU RIES

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 physician

patient 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 dismi ssed 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 do es n‘t extend to

the circumstances in this case. Specifically, we decline to find a duty whe re , as here, the harms alleged ly caused by the health care provider in providing an IME flow from a delay in proceedings. 7 We reach this conclusion based on the poli cy

- 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 th e 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.Cite as: 20 2 1 UT 41

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. 8 In 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 med ications 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 defenda nt‘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 in

jury; 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,‖

w e characterized the first two factors as ― ̳plus‘ factor[s]

— used to imp ose 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 i d.

¶17 Before moving on, we take this opportunity to express what has been implied by our developing ca se 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. 1909056 5 5 (Nov. 15, 2019).K IRK v. A NDERSON
Opinion of the Court

10 Herland v. Izatt , 2015 UT 30, ¶ 14, 345 P.3d 661

. S ee 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 ot herwise not exist

. ‖ Jeffs , 2012 UT 11, ¶ 5.

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

factors are certainly important

. Thus, e ven if the ―plus‖ factors are present, these ―minus‖ factors may nonetheless carry the day if the underlying policy c onsiderations 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 does n‘t always supersede ―professional responsibility for negligence‖ and that ―a  ̳complex universe of patient care‘ does not make injured

n onpatients‘ 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‖).Cite as: 20 2 1 UT 41

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 a n expert 9 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 Kir k

. 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 imposi ng 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, t he 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 a n independent medical examiner. It may also include, for example, an exper t 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 inf

ra ¶ 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

, 2 0 n.9

.K IRK v. A NDERSON
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 princ iple 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 gi ving 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 Co urt 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 lawsui t based on his testimony as to his opinions and conclusions .

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

s ee also Smith v. Radecki , 238 P.3d 111, 115 (Alaska 2010) (noting that courts that have declined to find a duty in t he 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

. T his service facilitates the relationships between parties without otherwise conflicting

interests

— relationships w hich carry their own societal value. For example, t hough not to be conflated with health care providers engaged in physician

- patient relationship s , 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 t he injured person‘s own health care provider is ab le 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 medi cal professionals. See Shanil Ebrahim et al.

, Commentary, Ethics and Legalities Associated with Independent
Medical Evaluations

, 186 C ANADIAN M ED

. A SS ‘ N J. 248, 248 (2014) (noting that, in traditional physician

- patient relationships, healthCite as: 20 2 1 UT 41

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. Sprink l er Servs. , 841 A.2d 793, 795

– 96 (Me. 2004) (noting that IMEs

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

R ecognizing 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 del ays 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

- and

suspenders 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 w ould 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 i ndependent 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.K IRK v. A NDERSON
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 wit h foreseeable harms giving rise to a duty, i d. ¶ 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 exis ts ―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: 20 2 1 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 soci al utility.

Because w e find those costs too high today, we affirm the district court‘s grant of a ppellees‘ motion to dismiss.