Smith v. Welch

Peggy Smith (plaintiff) was injured in a car accident and sued the other driver involved. Smith agreed to undergo an independent medical examination by a doctor chosen by the other party to assess the extent of Smith’s head and neck injuries. This examination was performed by a neurologist, Lauren Welch (defendant). During his examination, Welch asked Smith questions relevant to head and neck injuries. However, Welch also asked Smith questions about her sexual history and her family members’ sexual history. Welch repeatedly told Smith that because he was working for the other side, Smith’s failure to answer his questions would result in Smith not receiving a settlement for her injuries. Welch also performed a physical examination of Smith, during which he asked her to undress and repeatedly placed his hands on Smith’s breasts despite Smith’s attempt to prevent such contact. Smith testified that this examination was unlike any other breast examination that she had undergone. As Welch moved his hands towards Smith’s pubic region, Smith covered the area with her hands, and Welch attempted to move Smith’s hands. At that point, Smith ended that part of the examination. A medical expert opined that performing a breast or a gynecological examination was a departure from standard neurological practice in the assessment of neck and head injuries. Smith sued Welch for committing assault, battery, and an outrageous act. Smith conceded that she had consented to the examination but claimed that Welch had exceeded the scope of a medical examination for head and neck injuries. Smith further contended that even if a breast examination had been required, Welch had not performed such an examination but instead sexually fondled her. The district court granted Welch’s motion for summary judgment, and Smith appealed. Welch argued that he had no duty to Smith, because he had been hired by a third party to perform an independent medical examination.