Dugan v. Mobile Medical Testing Services, Inc.

• Decision Date: 23 September 2003
• Docket Number: (SC 16658).
• Citation: 265 Conn. 791,830 A.2d 752
• Court: Connecticut Supreme Court
• Parties: JOSEPH DUGAN ET AL. v. MOBILE MEDICAL TESTING SERVICES, INC., ET AL.

265 Conn. 791

830 A.2d 752

JOSEPH DUGAN ET AL. v. MOBILE MEDICAL TESTING SERVICES, INC., ET AL.

(SC 16658).

Supreme Court of Connecticut.

Argued December 6, 2002.

Officially released September 23, 2003.

Sullivan, C. J., and Borden, Katz, Palmer and Zarella, Js. Lucia Lanzaro Goodwin, with whom was J. Michael Cantore, Jr., for the appellants (plaintiffs).

Frank H. Santoro, with whom, on the brief, was R. Cornelius Danaher, Jr., for the appellees (defendants).

Opinion

ZARELLA, J.

This appeal raises a narrow issue of New York law, namely, whether a medical services provider hired by an employer to conduct a physical examination of an employee owes a duty of care to that employee. The named plaintiff, Joseph Dugan,¹ an employee of the city of Yonkers, New York, brought an action against the defendants, Mobile Medical Testing Services, Inc. (Mobile Medical),² and its president and chief operating officer, Richard B. Weltman, alleging, inter alia, that the defendants were negligent in failing to notify the plaintiff of the results of an abnormal electrocardiogram (EKG)³ that Mobile Medical had generated in connection with its physical examination of the plaintiff. The trial court granted the defendants' motion for summary judgment on the ground that, under New York law, the defendants owed no duty of care to the plaintiff. We conclude that the trial court improperly granted the defendants' motion for summary judgment and, therefore, reverse the trial court's judgment rendered in favor of the defendants.

The following undisputed facts and procedural history are relevant to this appeal. In December, 1994, Mobile Medical entered into a contract with the city of Yonkers to provide physical examinations to firefighters employed by the Yonkers fire department (fire department) and, on the basis of those examinations, to determine whether the firefighters were fit for duty. The physical examinations consisted of an EKG,⁴ a pulmonary function test and a fitness test, each of which was to be administered in accordance with standards established by the state of New York and the federal Occupational Safety and Health Administration.

On September 11, 1995, Mobile Medical personnel performed a physical examination of the plaintiff to evaluate his ability to continue working as an interior attack firefighter with the fire department. The examination occurred inside a specially equipped mobile van, which, at that time, was located in Yonkers. The examination was performed under the supervision of Gretchen Keefe, a physician.⁵ During the examination, but following the administration of the EKG, the plaintiff asked Keefe about the results of his EKG and received the following response: "Everything looks fine. We only found one irregular heartbeat."⁶ Allegedly as a result of this response, the plaintiff did not seek any subsequent medical treatment or additional testing. Thereafter, on November 4, 1995, the plaintiff suffered a heart attack at his home in Connecticut. On or about November 12, 1995, the plaintiff received a summary of his examination results from Mobile Medical, which informed the plaintiff that his EKG was abnormal and suggested that he should seek a follow-up consultation with his own physician.

The plaintiff brought the present action against the defendants, alleging that they negligently had failed to exercise reasonable care in notifying the plaintiff of his abnormal EKG. The defendants moved for summary judgment on the ground that they did not owe a duty to the plaintiff inasmuch as no physician-patient relationship existed between the parties. The trial court granted the defendants' motion.

As part of its analysis, the trial court addressed the threshold issue of whether to apply New York or Connecticut law. The court noted that, before it could determine which law to apply, it first was required to determine if a conflict existed, that is, if the relevant substantive law in each state was different.

The trial court then reviewed New York and Connecticut law regarding ordinary negligence and medical malpractice.⁷ The trial court concluded that no conflict existed between New York and Connecticut law with respect to the negligence and medical malpractice issues arising in the present case. Specifically, with regard to medical malpractice claims, the trial court concluded that Connecticut courts have adopted the standards set forth in the decision of Lee v. New York, 162 App. Div. 2d 34, 36-38, 560 N.Y.S.2d 700 (1990), in which the Appellate Division of the New York Supreme Court held that a physician owes no duty to a plaintiff in the absence of a physician-patient relationship and that such a relationship does not arise within the context of a fitness for duty examination.⁸ Thereafter, the trial court ultimately concluded that, based on the allegations in the complaint, the plaintiff's cause of action sounded solely in medical malpractice. Having determined that a conflict of laws analysis was unnecessary, the trial court applied the principles set forth in Lee, effectively rendering its decision on the basis of an application of New York medical malpractice law.

The trial court concluded that a physician-patient relationship did not exist between the plaintiff and Mobile Medical. In so concluding, the trial court explained that "no physician-patient relationship exist[s] when a physician is retained to examine a patient solely on behalf of an employer ...." The court recognized, however, that, in accordance with Lee, "`[a]n exception applies ... where the physician affirmatively treats or affirmatively advises the employee as to treatment and the treatment actually causes further injury.'" The trial court then concluded that the exception did not apply in the present case because the statement of Keefe, the attending physician, to the plaintiff "[did] not rise to the level of affirmative treatment or advisement as to treatment as a matter of law." The court reasoned that "[Keefe's] statement [did] not contain any direction as to any medical treatment [that the plaintiff] should seek or forgo.... Indeed, the statement indicated to [the plaintiff] that he had one irregular heartbeat, but that everything else looked fine." In the trial court's view, "[i]t would not have been reasonably foreseeable, based on this statement alone, that [the plaintiff] would have forgone seeking medical care from his normal physicians." Accordingly, the trial court concluded that, in the absence of a physician-patient relationship, the defendants did not owe the plaintiff a duty of care and, consequently, the plaintiff's claim failed as a matter of law. The trial court thereupon granted the defendants' motion for summary judgment and rendered judgment in their favor.

On appeal,⁹ the plaintiff challenges the trial court's decision on two grounds.¹⁰ First, the plaintiff claims that, under the facts of this case and notwithstanding the holding in Lee, Mobile Medical had a duty to inform the plaintiff of his abnormal EKG. The plaintiff requests that we adopt a more expansive rule regarding the concept of "duty" than that announced in Lee and, accordingly, conclude that there existed a duty to notify the plaintiff about his abnormal EKG. Additionally, the plaintiff contends that, inasmuch as he brought his action against the defendants under a theory of negligence rather than medical malpractice, the decision in Lee should not control the outcome of this case because the holding in Lee was predicated on principles of medical malpractice rather than principles of negligence.

Second, the plaintiff claims that, even if we apply Lee, the trial court improperly concluded that Keefe's statement to the plaintiff concerning his EKG did not give rise to a duty of care as a matter of law. We conclude that, under New York law, Mobile Medical did not have a duty to inform the plaintiff of his abnormal EKG. We also conclude, however, that the trial court improperly determined that, as a matter of law, Keefe's statement to the plaintiff did not fall within the exception for affirmative treatment or advice, and, therefore, did not give rise to a duty of care. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

I

We begin by noting that, contrary to the conclusion of the trial court, this case does not present a "false conflict" whereby the controlling law of each jurisdiction is the same. The trial court concluded that Connecticut law is the same as New York law on the issue of whether a physical examination of an employee by a physician hired by an employer creates a physician-patient relationship that can serve as the basis for the recognition of a duty of care. The trial court reached this conclusion even though no appellate court in Connecticut ever has addressed this issue under these circumstances. Although we recognize the Superior Court cases on which the trial court relied, those cases cannot support the trial court's conclusion that Connecticut law is the same as New York law with respect to this issue. Consequently, because there is no controlling appellate court precedent in Connecticut, the trial court should have addressed the conflict of laws issue to determine which state's law to apply. See R. Leflar et al., American Conflicts Law (4th Ed. 1986) § 92, p. 272 (only determination of "false conflict," whereby application of law of either jurisdiction would produce same results, eliminates need for conflict of laws analysis).

We conclude, nonetheless, that we are constrained in this appeal to apply New York law. We reach this conclusion for the following reasons. First, the plaintiff has not presented this court with an adequate challenge to the trial court's decision effectively to apply New York law, that is, the principles announced in Lee.¹¹ The trial court applied these principles throughout its analysis on the basis of its determination that Connecticut has...