Dornak v. Lafayette General Hospital

• Decision Date: 18 May 1981
• Docket Number: No. 80-C-2884,80-C-2884
• Citation: 399 So.2d 168
• Parties: Lois DORNAK v. LAFAYETTE GENERAL HOSPITAL, William Grun and Continental Insurance Co.
• Court: Louisiana Supreme Court

Page 168

399 So.2d 168

Lois DORNAK v. LAFAYETTE GENERAL HOSPITAL, William Grun and Continental Insurance Co.

No. 80-C-2884.

Supreme Court of Louisiana.

May 18, 1981.

Rehearing Denied June 22, 1981.

Edward J. Milligan, Jr., Lafayette, for plaintiff-applicant.

Timothy J. McNamara, Marilyn C. Castle, Graham N. Smith, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for defendant-respondent.

MARCUS, Justice. ^*

Mrs. Lois Dornak instituted this action for damages for personal injuries against Lafayette General Hospital, William Grun, its assistant administrator, and Continental Insurance Company, their general liability insurer. She alleged that defendants were negligent in failing to inform her that x-rays taken at her pre-employment physical examination disclosed a tubercular condition.

Defendants filed an exception of no cause of action asserting that they owed no legal duty to plaintiff under the circumstances to disclose her physical condition to her. Defendants also filed an exception of res judicata or judicial estoppel on the ground that a prior judgment in Dornak v. Lafayette General Hospital, 368 So.2d 1185 (La.App.3d Cir. 1979), barred the present action. ¹ The trial court overruled the exception of judicial estoppel but sustained the exception of no cause of action and dismissed plaintiff's suit with prejudice. The Court of Appeal, Third Circuit, affirmed, agreeing with the trial court that plaintiff's petition failed to state a cause of action; however, it did not reach the issues raised by defendants' exception of res judicata or judicial estoppel. ² On plaintiff's application, we granted certiorari to review the correctness of that judgment. ³

Plaintiff alleges in her petition that on or about August 8, 1974, she sought employment as a nurses' aide with Lafayette General Hospital. As part of its pre-employment procedure, she was required to take a physical examination by a hospital physician which included a chest x-ray. The x-ray revealed a tubercular condition and a request was forwarded to the hospital's administrative department to have plaintiff return for further x-rays. Notwithstanding the facts that the x-ray revealed evidence of tuberculosis and a request had been made for further examination, the hospital failed to inform plaintiff of her condition or take any further action in regard to it. Plaintiff was subsequently employed as a nurses' aide at the hospital. During her employment, she experienced a persistent cough, nasal drip and hoarseness in her voice which progressively worsened until she was admitted to Our Lady of Lourdes for tests on May 26, 1977. Her physician examined the August 8, 1974 x-ray report which had been placed in plaintiff's personnel file and found that the chest x-ray revealed a tubercular condition. Plaintiff was then informed for the first time that she was suffering from tuberculosis. Plaintiff alleges that defendants were negligent in failing to inform her of her tubercular condition. She further alleges that had she been advised of the x-ray results and the request for further evaluation, she would have engaged medical treatment for the condition at that time; however, since she was never advised of the report and findings, her condition progressively worsened and she is now undergoing and will continue to undergo treatment for at least three years.

The courts below sustained defendants' exception of no cause of action on a finding that they owed no duty to plaintiff to inform her of her condition in August 1974. The narrow issue for our determination, then, is whether an employer owes a duty to a prospective employee who is subsequently hired by the employer to inform him or her of a tubercular condition discovered during a required pre-employment physical examination. The issue is res novo to this court. If a duty is owed, then plaintiff's petition states a cause of action.

The standard of conduct required of persons in Louisiana in their relationships with one another as a basis of delictual liability is set forth in La.Civ.Code arts. 2315 and 2316.

Article 2315 provides:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

Article 2316 provides:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Persons are liable for acts of commission and omission that cause damage to another under these articles if a duty imposed by the relationship of the parties is breached by such act or omission. We have stated in discussing whether a duty exists as a result of the relationship between the parties under the duty-risk analysis of tort liability that

(a)ll rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designated to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.

Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

We recognize at the outset that an employer generally owes no duty to a prospective employee to ascertain whether he or she is physically fit for the job sought. Nonetheless, where a prospective employer assumes such an undertaking, many jurisdictions have found the employer liable for injuries to employees resulting therefrom if the employer performs it negligently. Jines v. General Electric Co., 303 F.2d 76 (9th Cir. 1962); Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir. 1956); Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974); Isgett v. Seaboard Coast Line Railroad Co., 332 F.Supp. 1127 (D.S.C.1971); Coffee v. McDonnell-Douglas Corp., 8 Cal.3d 551, 105 Cal.Rptr. 358, 503 P.2d 1366 (1972); Wojcik v. Aluminum Co. of America, 18 Misc.2d 740, 183 N.Y.S.2d 351 (1959). See also Restatement (Second) of Torts, § 323 (1965) (obligation assumed by an employer is derived from the general principle that one who voluntarily undertakes to perform an action must do so with due care).

We conclude in the instant case that under the general principles of tort liability enunciated in La.Civ.Code arts. 2315 and 2316, defendants owed a duty to plaintiff to disclose the tubercular condition discovered during her pre-employment physical examination. The check x-ray revealing plaintiff's condition was under the care and custody of the hospital and its assistant administrator (Grun). To notify plaintiff of the findings would have been a simple matter not requiring the professional skill of a physician and not imposing an undue burden upon an administrative or personnel official of the hospital. While we do not consider that the hospital had any obligation to give plaintiff a pre-employment physical examination, once it undertook to do so and subsequently employed her, she was entitled to and did rely upon the expectation that she would be told of any dangerous condition actually disclosed by that examination, especially considering the fact that she was employed by the hospital to perform duties placing her in contact with co-employees and hospital patients.

In sum, we conclude that defendants owed a duty to plaintiff to protect her against the particular risk which allegedly caused injury to her. The duty owed was to...