Armstrong v. Morgan, 8406

• Decision Date: 21 December 1976
• Docket Number: No. 8406,8406
• Citation: 545 S.W.2d 45
• Parties: Donald E. ARMSTRONG, Appellant, v. Dr. Melvin D. MORGAN, Appellee.
• Court: Texas Court of Appeals

Page 45

545 S.W.2d 45

Donald E. ARMSTRONG, Appellant, v. Dr. Melvin D. MORGAN, Appellee.

No. 8406.

Court of Civil Appeals of Texas Texarkana.

Dec. 21, 1976.

Rehearing Denied Jan. 11, 1977.

Stanley M. Kaufman, Oster & Kaufman, Dallas, for appellant.

David S. Kidder, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.

RAY, Justice.

This is a summary judgment case. Donald E. Armstrong, appellant (plaintiff), filed suit against appellee (defendant), Dr. Melvin D. Morgan, seeking money damages alleged to have resulted from an incorrect diagnosis of appellant's physical condition. Appellee's motion for summary judgment was granted and the trial court entered a take-nothing judgment against appellant. Two points of error have been submitted for our consideration.

Appellant contends that genuine issues of material fact exist and that appellant's cause of action is not barred by limitations.

Appellant Armstrong was employed by Zale Corporation and upon his being promoted to the position of Vice President of Credit he was requested to have a physical examination. He was examined by Dr. Morgan who was employed by Zale to make the examination and report to it the results of the examination. The report indicated that appellant was in very bad physical condition. The statements contained in Dr. Morgan's letter resulted in appellant's losing his job and his position as Vice President of Credit of Zale Corporation, plus the benefits which he had by virtue of his position with the company. Appellant contends that the letter contained false and inaccurate statements and conclusions regarding his health and physical condition and that appellee was negligent in his diagnosis because he did not exercise reasonable attention, observation and skill in conducting the physical examination. Further, appellant contends that the inaccurate and improper diagnosis resulted in damages to him because he lost his job when the report was received by Zale Corporation.

Appellee contends that the holding in Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.Dallas 1963, writ ref'd n.r.e.), controls the disposition to be made in the present case. There the court held that the company doctor owed to duty to the employee to discover that she had tuberculosis when he examined her prior to being employed by the company. Since there was no duty on the company physician or the employer to discover the presence of disease, there could be no actionable negligence in their failure to do so. In Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App.Dallas 1969, no writ), the court decided that the physician-patient relationship is dependent upon contract and in the absence of such contract, the physician owes no duty to treat a person in need of medical assistance. It is undisputed that no contract existed between appellant and Appellee Morgan. However, the court pointed out in Childs v. Weis, supra, that it had occasion to discuss the contractual relationship of physician and patient in Lotspeich v. Chance Vought Aircraft, supra, and that it had decided in Lotspeich 'there was no duty on the doctor to do anything except to perform efficiently the work the company had employed him to do.' In Lotspeich the same court said that the job applicant had no legal right to demand that the doctor exercise any care whatever in conducting the examination, except to avoid injuring her.

This Court had occasion to examine a similar question in Childs v. Greenville Hospital Authority, 479 S.W.2d 399 (Tex.Civ.App.Texarkana 1972, writ ref'd n.r.e.), which grew out of the same transaction involved in Childs v. Weis, supra. There we quoted the following from Prosser:

'The problem of duty is as broad as the whole law of negligence, and . . . no universal test for it has ever been formulated . . .. It is imbedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant's responsibility may be...