Daly v. U.S.

• Decision Date: 22 October 1991
• Docket Number: No. 90-35880,90-35880
• Citation: 946 F.2d 1467
• Parties: George J. DALY, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1467

946 F.2d 1467

George J. DALY, Jr., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 90-35880.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 31, 1991.

Decided Oct. 22, 1991.

Thomas O. Rice, Asst. U.S. Atty., Spokane, Wash., for defendant-appellant.

William D. Symmes, Witherspoon, Kelley, Davenport & Toole, Spokane, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, BEEZER and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Senior Circuit Judge:

This case turns on a single issue: Does an examining physician have a duty under Washington law to inform those examined of abnormal test results, absent a doctor-patient relationship? We find that such a duty exists. We affirm the district court's holding on liability but remand for a recalculation of damages.

BACKGROUND

George Daly suffers from sarcoidosis, an incurable lung disease. The disease can be fatal, but once it is diagnosed, prompt treatment may halt its progress. The damage already suffered is irreversible. Daly did not receive an accurate diagnosis until the disease had reached an advanced stage. The disease has left him permanently disabled.

In April 1979, as part of a preemployment physical examination for the Veteran's Administration (VA) hospital, Daly, a registered nurse, submitted to a chest x-ray and tuberculosis test. The radiologist's review of the x-ray revealed an abnormality. The doctor diagnosed tuberculosis even though the tuberculosis test was negative. Relying on expert testimony, the district court found that the radiologist should have included sarcoidosis as a possible cause of the abnormality once tuberculosis had been eliminated. The radiologist neither diagnosed sarcoidosis nor informed Daly of the abnormal finding.

From 1979 to 1981, while he was a hospital employee, Daly visited the VA employee health unit several times, seeking treatment for lung-related disorders. Although the health unit treated his symptoms, it did not order further chest x-rays until Daly's scheduled employee exam in January 1981. The VA radiologist noted the abnormality on the new x-ray, yet once again failed to diagnose sarcoidosis or to inform Daly of the abnormality.

Later that month, Daly consulted a private physician, Dr. Byrd. Dr. Byrd did not order a chest x-ray and did not diagnose sarcoidosis. In August 1981, Daly returned to the VA employee health unit. It ordered additional x-rays. Upon review of them, the VA recommended that Daly return to Dr. Byrd. Daly did so and Dr. Byrd continued to prescribe treatment. Not until May 1983, did Daly's physician refer him to a pulmonary specialist. The specialist diagnosed sarcoidosis and promptly started treatment. The treatment has halted the course of the disease.

Daly sued the VA for malpractice, alleging a cause of action under the Federal Tort Claims Act. The district court awarded judgment of $499,372, after finding that: (1) the VA had a duty to inform Daly of the abnormal finding in the 1979 x-ray once the tuberculosis test results became available; (2) the breach of that duty allowed the disease to progress, causing Daly's disability; and (3) the VA was liable for all resulting damage, irrespective of any intervening negligence on the part of Daly's private physician.

The VA appeals.

I

Under the Federal Torts Claims Act, the law of the state where the alleged tort occurred controls issues of liability. 28 U.S.C. § 2674 (1988); Harbeson v. Parke Davis, Inc., 746 F.2d 517, 521 (9th Cir.1984). This court reviews de novo the district court's interpretations of state law and applies the clearly erroneous standard to findings of fact. Harbeson, 746 F.2d at 521.

Determining the proper standard of care is a legal question reviewed de novo. Miller v. United States, 587 F.2d 991, 994-95 (9th Cir.1978). We review a determination of negligence for clear error. Id.

II

Under common law, medical malpractice liability arose only in the context of a physician-patient relationship. E.g. Rist v. General Elec. Co., 47 Wash.2d 680, 289 P.2d 338 (1955). Washington relaxed this requirement when the legislature passed a comprehensive medical malpractice act in 1976. See Laws of 1975-76, 2nd Ex.Sess., ch. 56, §§ 6-13 (codified as amended at Wash.Rev.Code §§ 7.70.010-.080 (1989)). The statute defines three separate causes of action, based on: (1) failure to follow the accepted standard of care; (2) failure to obtain informed consent; and (3) a promise that the injury would not occur. Wash.Rev.Code § 7.70.030. For the latter two causes of action, the statute specifies that the injured person must be a patient. Wash.Rev.Code §§ 7.70.030(2), (3). For cases arising under the first cause of action, the general negligence provision, the statute contains no such requirement. Wash.Rev.Code § 7.70.030(1).

The statute also defines the necessary elements of proof for general negligence and informed consent cases. Wash.Rev.Code §§ 7.70.040-.050. These provisions, consistent with the provision defining the three causes of action, recognize that the plaintiff need not be a patient for general negligence claims. Only the section describing the informed consent elements includes a requirement that the plaintiff must have been a patient.

The statute's broad definition of potential defendants provides further evidence of the legislature's intent to impose liability beyond the context of a physician-patient relationship. The statute specifies that any "health care provider" may be held liable for failing to follow the accepted standard of care. Wash.Rev.Code § 7.70.030(1). It defines "health care providers" to include, among others, opticians, pharmacists, midwives, paramedics, and osteopathic physician's assistants. Wash.Rev.Code § 7.70.020. None of these providers can form a physician-patient relationship, yet all may be held liable under the statute.

Recent Washington case law recognizes this potential liability. In McKee v. American Home Products, Corp., 113 Wash.2d 701, 782 P.2d 1045 (1989), the Washington Supreme Court discussed a pharmacist's duties under the statute. A majority of the court rejected the argument that pharmacists have a generalized duty to warn customers of the hazardous side effects associated with a drug. Id. at 707-14, 782 P.2d at 1048-55. Yet both the majority and the dissent agreed that a duty to warn could arise in cases involving known or obvious errors in the prescription. Id. at 715, 734, 782 P.2d at 1052-53.

The court explained: "We agree pharmacists should have a duty to be alert for patent errors in a prescription, for example: obvious lethal dosages, inadequacies in the instructions, known contraindications, or incompatible prescriptions, and to take corrective measures." Id. at 715, 782 P.2d at 1053 (footnotes omitted, emphasis deleted). The court recognized this duty despite the absence of a physician-patient relationship between the pharmacist and the plaintiff.

Washington's recognition of a cause of action for wrongful life also demonstrates its willingness to impose liability without first finding a physician-patient relationship. In Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983), the court held that a physician owes a duty not only to potential parents, but also to "persons not yet conceived at the time of a negligent act or omission." Id. at 480, 656 P.2d at 490. In extending a duty beyond the physician-patient relationship, the court stressed foreseeability as the key to its analysis. Id. at 480, 656 P.2d at 490.

Considering the plain language of the statute, together with the demonstrated willingness of Washington courts to find liability without first finding a physician-patient relationship, we have little trouble holding that the VA radiologist owed Daly a duty. To hold otherwise would require us to assume that Washington courts would carve an exception to the general negligence rule for preemployment physicals. ¹ Guided by the analysis in Harbeson, we rely on principles of foreseeability. We find that a person is foreseeably endangered when examining physicians fail to make known abnormal findings. ²

The precise scope of this duty is unclear. The statutory scheme, together with cases such as McKee, suggest that the scope of the duty depends on the nature of the underlying relationship. For example, in McKee the duty extended only to the factors uniquely within the control of the pharmacist. The court recognized that the highest standard was appropriately applied to the physician-patient relationship. McKee, 113 Wash.2d at 710, 782 P.2d at 1050.

In the setting of a preemployment examination, where the physician-patient relationship does not yet exist, the physician's duty should be less extensive. We need not determine the exact contours of this duty, however. We find persuasive, as did Judge McNichols, the expert testimony given at trial that, at a minimum, the radiologist should have notified Daly of the abnormality.

This duty is hardly burdensome and recognizes that those who place themselves "in the hands of a person held out to the world as skilled in a medical profession, albeit at the request of one's employer justifiably [have] the reasonable expectation that the expert will warn of any incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization." Green v. Walker, 910 F.2d 291, 295-96 (5th Cir.1990) (internal quotation and citation omitted).

We find unpersuasive the VA's argument that we must analyze this case under the theory of informed consent. It asserts correctly that Washington courts have maintained the requirement of a physician-patient relationship in informed consent cases. E.g. Crawford v. Wojnas, 51 Wash.App. 781, 754 P.2d 1302, rev. denied, 111 Wash.2d 1027 (1988) (duty to obtain informed consent does not extend to mother, who contracted polio from...