Felton v. Schaeffer

• Decision Date: 11 April 1991
• Docket Number: No. D010694,D010694
• Citation: 229 Cal.App.3d 229,279 Cal.Rptr. 713
• Court: California Court of Appeals Court of Appeals
• Parties: Robert J. FELTON, Plaintiff and Respondent, v. Marcus SCHAEFFER et al., Defendants and Appellants.

Page 713

279 Cal.Rptr. 713

229 Cal.App.3d 229

Robert J. FELTON, Plaintiff and Respondent, v. Marcus SCHAEFFER et al., Defendants and Appellants.

No. D010694.

Court of Appeal, Fourth District, Division 1, California.

April 11, 1991.

Review Denied Aug. 1, 1991.

Neil, Dymott, Perkins, Brown & Frank, Robert W. Harrison and Mark A. Birmingham, San Diego, for defendants and appellants.

F.J. Bloomingdale, La Mesa, and Howard Alan Kitay, El Cajon, for plaintiff and respondent.

FROEHLICH, Associate Justice.

Schaeffer and IMC (collectively appellants) raise three contentions on appeal. First, appellants argue no action lies against them because they breached no duty owed to Felton, never having had a physician/patient relationship with Felton. Second, they argue that even if a duty of care existed, the court prejudicially erred in its instructions to the jury. Finally, appellants contend there is no substantial evidence to support the verdict. After reviewing the factual and procedural history, we will address appellants' first claim, which we view as dispositive.

I. Factual Background

The evidence, viewed most favorably in support of the verdict (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183), reflects that in January 1987 Felton, who was then employed by the La Mesa-Spring Valley School District (La Mesa), learned of a job opportunity as a maintenance supervisor with the Grossmont Union High School District (Grossmont). Felton submitted his application and was selected for the job subject to, among other things, a satisfactory report on his physical condition as determined by a pre-employment physical examination. Felton's starting date was to be April 10, 1987.

The pre-employment physical examination was conducted on March 25, 1987. Felton, who was instructed not to eat or drink anything after 12:00 a.m. the day of the examination, did not take his antihypertension medication prior to the examination. Since 1983 Felton has had hypertension, for which he faithfully has taken his prescribed medication each day except for the day of the examination.

On arriving at IMC, Felton completed a written health history questionnaire, on which he indicated he was taking medication twice daily for high blood pressure. After a waiting period he was escorted to a lab, where a blood pressure reading immediately was taken. He then was placed in a waiting room into which Dr. Horowitz entered. Dr. Horowitz reviewed the paperwork and commented that Felton's blood pressure was a little elevated, to which Felton responded, "It's because I didn't take any [medication] this morning." There was no further discussion concerning Felton's blood pressure. Dr. Horowitz formed the impression Felton was not taking his medication on a regular basis.

Following the examination Dr. Horowitz made notations to request certain records pertaining to Felton's other health conditions, but did not request any records pertaining to his hypertension treatment or status. Felton executed consent forms for the release of records pertaining to his other health conditions, as requested by IMC, but was not asked to sign forms to obtain records pertaining to his hypertension. It was customary for IMC to obtain consent forms for release of records relating to any condition causing a doctor concern and about which additional information was desired. Dr. Schaeffer indicated the failure to obtain a form of release for records pertaining to Felton's hypertension was an oversight.

Dr. Horowitz's summary of his findings, prepared March 27, indicated "no decision" could be reached without further information. Dr. Schaeffer was responsible for reviewing the results of all pre-employment physical examinations. He understood Grossmont needed a verbal report within 48 hours of Felton's examination and a final evaluation not later than April 10, its target date for filling the position. Accordingly, after reviewing Dr. Horowitz's summary evaluation, Dr. Schaeffer phoned Grossmont to indicate the existence of a potential problem relating to Felton's medical condition and, on April 7, prepared a form conveying his opinion "no decision" on Felton could be made without further cardiovascular tests.

Dr. Schaeffer opined, based on conversations with Dr. Horowitz, that Felton was not taking the prescribed medication for hypertension on an ongoing basis, causing Dr. Schaeffer concern. Dr. Schaeffer indicated to Grossmont he would make a decision on Felton's physical qualifications based on whatever information he could acquire prior to the April 10 deadline, but he apparently made no attempt to obtain records relating to Felton's hypertension problem. ¹

Dr. Schaeffer executed his final evaluation on April 9, finding Felton unsuited for employment because of his "noncompliance with antihypertensive treatment" but indicating Felton might qualify if he were to "demonstrate[ ] compliance for six months." The sole basis for the "unsuitable" finding related to Felton's high blood pressure reading, his medical history and his alleged noncompliance with the antihypertension regimen.

On April 14, Felton first learned he would not be hired by Grossmont. On April 16, Dr. Schaeffer informed Felton he had failed the examination due to uncontrolled high blood pressure but could reapply if he showed six months of compliance. That same date Grossmont informed Felton it was going to hire another person for the job. Felton eventually learned Grossmont had hired another person. Having resigned from his previous job effective April 9, Felton reapplied for that position and was told he would be required to pass a physical examination. On May 1, Felton underwent and passed the second physical examination, conducted by a different branch of IMC which used different procedures for taking blood pressure readings. He then was rehired by La Mesa.

There was evidence Dr. Schaeffer's opinion of "unsuitability" was based on inadequate information and potentially inaccurate test results. Dr. Schaeffer admitted he lacked sufficient information to make a more accurate decision and would have preferred the advantage of additional information; however, pressed by Grossmont's time constraints, he made the decision based on the information then available. The evidence also suggested the elevated blood pressure reading of March 25 may have been inaccurate.

Dr. John G. Lockie testified that numerous factors can skew and elevate a blood pressure reading, including stress, an instrument's cuff size, elevation of the arm relative to the heart, transition from walking to a sitting position immediately before a reading is taken, and failure to take antihypertension medication on the day of the examination. He further indicated because of these possible influences on blood pressure he would remeasure any elevated readings. He concluded that given the circumstances under which Felton's reading was taken, ² such reading would not be considered "very meaningful." IMC did not retest Felton's blood pressure.

II. Procedural History

Felton filed a complaint for damages, alleging because appellants "performed their duties as medical doctors so negligently, carelessly, and below the standard of care to be followed in the practice of medicine," he was rejected for the job he sought at Grossmont. Appellants subsequently moved for summary judgment or summary adjudication of issues, contending they had no physician/patient relationship with Felton and hence owed no duty to Felton, relying on Keene v. Wiggins (1977) 69 Cal.App.3d 308, 138 Cal.Rptr. 3. The trial court denied the motion, concluding (1) Keene was inapplicable to a pre-employment physical examination; (2) Felton's action was for common law negligence rather than medical malpractice; and (3) appellants owed Felton a duty of due care.

Jury trial commenced April 17, 1989. During trial appellants timely moved for a nonsuit and a directed verdict, both of which were denied. The jury returned a special verdict, finding Schaeffer and IMC negligent, and judgment was entered for damages of $67,210, comprised solely of Felton's economic losses and pain and suffering. Appellants' subsequent motions for judgment notwithstanding the verdict or for new trial were denied.

We conclude that appellants' conduct was not actionable either as medical malpractice or common law negligence, because the gravamen of Felton's claim was that appellants' misdiagnosis breached a duty of care owed to Felton. However, because the physician/patient relationship is absent here, any duty to use due care in evaluating Felton's medical condition was owed to the employer rather than Felton.

III. Because There Was No Physician/Patient Relationship Between Appellants and Felton, Appellants' Misdiagnosis of Felton's Medical Condition Is Not Actionable in Negligence or Medical Malpractice

It is undisputed that appellants evaluated Felton solely for purposes of a pre-employment physical examination and that such examination was conducted at the request of the employer. It is equally clear Felton did not visit appellants for medical treatment or advice, nor did Felton seek or decline to seek medical treatment in reliance on the evaluation. Under these facts Felton has no claim in ordinary negligence or medical malpractice based on the alleged misdiagnosis contained in IMC's report.

In Keene v. Wiggins, supra, 69 Cal.App.3d 308, 138 Cal.Rptr. 3, this court held an examinee had no malpractice or negligence claims against an examining doctor on facts parallel to those of this case. In Keene the plaintiff was examined by a doctor who was hired by, and whose report was for the benefit of, the employer's workers' compensation carrier. The examination was solely for purposes of rating the plaintiff's injury and not for care or treatment. In rejecting the plaintiff's malpractice claim against the doctor, this court held that no duty to plaintiff had been breached, stating:

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