Greenberg v. Perkins

Decision Date01 February 1993
Docket NumberNo. 91SC768,91SC768
Citation845 P.2d 530
PartiesDavid C. GREENBERG, M.D., Petitioner, v. Carolyn L. PERKINS, f/k/a Carolyn L. Hudson, Respondent.
CourtColorado Supreme Court

Cooper & Kelley, P.C., Thomas B. Kelley, Mark A. Fogg, John R. Mann, Denver, for petitioner.

Ozer & Mullen, P.C., Anthony L. Sokolow, Christopher C. Felton, Denver, for respondent.

Montgomery Little Young Campbell & McGrew, P.C., Robert R. Montgomery, J. Bayard Young, William H. ReMine, III, Englewood, for amicus curiae Colorado Medical Soc.

McDermott, Hansen & Reilly, William J. Hansen, Denver, for amicus curiae Colorado Trial Lawyers Assn.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the judgment of the Colorado Court of Appeals in Perkins v. Greenberg, 829 P.2d 461 (Colo.App.1991), reversing a summary judgment in favor of David C. Greenberg, M.D., in a negligence action brought against him by Carolyn L. Perkins in Denver District Court. Perkins alleged that she suffered injuries to her lower back as a result of testing procedures performed by a third party and requested by Greenberg following his own independent medical examination of Perkins. The district court based summary judgment on the conclusion that in the absence of a physician-patient relationship the doctor owed no duty of care to Perkins to protect her from the asserted injuries. The court of appeals reversed, holding that even though there was no physician-patient relationship between Greenberg and Perkins, the doctor owed Perkins "a duty to exercise due care, both in examining her personally and in directing that she undergo further testing as a part of defendant's examination regimen." Id. at 464. We affirm the judgment of the court of appeals.


This dispute raises the question of whether David C. Greenberg, M.D. (Greenberg), owed Carolyn L. Perkins (Perkins) any duty of care when he conducted an independent medical examination of her pursuant to C.R.C.P. 35(a) 1 and then referred her for an additional evaluation to test whether his initial diagnosis was correct. Because this case comes to us from the court of appeals' reversal of the district court's grant of summary judgment in favor of Greenberg, we first review the principles that govern summary judgment and then set forth the facts that we must consider in determining the propriety of the court of appeals' decision.

Summary judgment is a drastic remedy that is warranted only on a clear showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo.1988); accord Civil Serv. Comm'n v. Pinder, 812 P.2d 645, 649 (Colo.1991); Elm Distrib. v. Tri-Centennial Corp., 768 P.2d 215, 218 (Colo.1989). The party moving for summary judgment bears the burden of establishing the lack of a triable factual issue, and if there are any doubts as to the existence of such an issue, they must be resolved against that party. Elm Distrib., 768 P.2d at 218; Churchey, 759 P.2d at 1340. Although the party opposing summary judgment is entitled to the benefit of all favorable inferences that may be drawn from the facts contained in the record, Churchey, 759 P.2d at 1340; Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714, 718 (Colo.1987), the movant's request must be granted where the facts are undisputed and the opposing party cannot prevail as a matter of law. Sharp, 741 P.2d at 718. Applying these principles, we must determine whether the record in the present case supports the district court's entry of summary judgment in favor of Greenberg. We begin therefore by presenting the facts that formed the basis for that court's decision.

In May of 1985, Perkins was a passenger in a shuttle bus at Stapleton International Airport and sustained injuries to her cervical spine when the bus struck a stop sign, causing her to fall forward and another passenger to fall on top of her. As a result, she brought a personal injury action against both the bus driver and the owner-operator of the bus to recover damages for her injuries. During the pendency of that litigation, the defendants' counsel sought to determine the extent of Perkins' injuries and for that purpose asked her to undergo an independent medical examination. The defendants' counsel retained Greenberg for the limited purpose of conducting this examination; his employment did not include providing Perkins with any medical advice, care, or treatment. Perkins agreed to submit to the examination and, pursuant to defense counsel's referral, reported to Greenberg's office on March 30, 1987. 2

On that day Greenberg spent approximately ten to fifteen minutes taking Perkins' medical history. During this time, Perkins told him that she had been experiencing problems with her neck and right arm since the shuttle bus accident and described for him the medical, chiropractic, and physical therapy treatments that she had received for these injuries. Perkins also informed Greenberg that she had a history of back problems and that she had undergone four previous surgeries in her lower back region. Although Greenberg's actual examination of Perkins was limited to her cervical spine and upper extremities, as these were the areas that she claimed were injured in the shuttle bus collision, he did see the scars from the prior surgeries on her lower back.

Based on his examination, Greenberg was left with the impression that Perkins suffered from symptom magnification syndrome, a condition in which a person either consciously or unconsciously exaggerates symptoms of injury, and therefore referred her for further testing so as to confirm or rule out this diagnosis. Specifically, following his examination Greenberg wrote out a prescription form referring Perkins to the Denver Occupational Conditioning Center, Inc. (DOCC) for a "functional capacity evaluation." This evaluation consisted of a series of physical tests designed to measure Perkins' strength and range of motion. The tests required more than two hours to perform and included various lifting and pushing exercises. Greenberg was familiar with the nature of the tests. Pursuant to the referral, Perkins reported to DOCC on April 17, 1987, two and one-half weeks after Greenberg's preliminary examination, and participated in the evaluation.

Although Perkins was represented by counsel throughout this period and was also under the care of her own treating physicians and chiropractor, there is nothing in the record indicating that she either notified these persons or sought their advice regarding Greenberg's referral for the functional capacity evaluation. 3 However, when she reported to DOCC she informed Jan Hanson, the physical therapist who administered the evaluation, of her previous back surgeries. Upon receiving this information, Hanson became concerned that some of the tests that Greenberg had requested would aggravate Perkins' lower back problems and therefore telephoned Greenberg to ensure that he wanted her to proceed with the functional capacity evaluation. In her deposition testimony, Hanson recalled that upon relating her concern to Greenberg, she was told to "do the best [she] could to assess [Perkins'] functional abilities." Hanson proceeded with the testing accordingly.

After completion of the functional capacity evaluation, Perkins began to experience pain in her lower back and has since had to undergo surgery to alleviate the pain. As a result, she instituted this action in Denver District Court against Greenberg contending that the various lifting and pushing tasks that she performed during the course of the functional capacity evaluation injured her lower back, which had been left in a weakened condition by her four previous surgeries. 4 Perkins based her action against Greenberg on allegations that he was negligent in referring her for the evaluation. 5 Greenberg moved for summary judgment, contending that in the absence of a physician-patient relationship, he owed no duty of care to Perkins. The district court agreed and granted summary judgment. On appeal, the court of appeals reversed, holding that the absence of a physician-patient relationship does not preclude the recognition of a duty. Perkins, 829 P.2d at 463.

In her brief on certiorari review, Perkins relies on two closely related alternative theories to impose liability on Greenberg. First, she relies on authority that holds that even in the absence of a physician-patient relationship a doctor administering an independent medical examination is liable for injuries resulting from negligence occurring in the course of the examination. She then contends that the functional capacity evaluation was part of the independent medical examination and that injuries occurring during the evaluation and resulting from a negligent referral for the performance of tests should provide a basis for liability. Alternatively, Perkins urges us to recognize that, as an extension of the recognized duty of care applicable during the course of an independent medical examination, a physician who performs an independent medical examination has a duty of care in referring the examinee for the performance of tests.

The nature and extent of any duty owed to an examinee by a physician performing an independent medical examination is a matter of first impression in this state. In order to resolve the issue to the extent necessary to decide this case, we first consider the approaches that other jurisdictions have taken with respect to a physician's duty to an examinee who is examined at the request of a third person, and then employ the analysis that we have developed in our own cases for determining the existence and scope of duties. We conclude that the rationale of the cases from other jurisdictions as well as the analysis set forth in our own duty cases support a holding that a physician who conducts an...

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