Hoover v. Williamson, 8

• Decision Date: 13 October 1964
• Docket Number: No. 8,8
• Citation: 236 Md. 250,203 A.2d 861,10 A.L.R.3d 1064
• Parties: , 10 A.L.R.3d 1064 Willard HOOVER v. C. Vernon WILLIAMSON.
• Court: Maryland Court of Appeals

Page 250

236 Md. 250

203 A.2d 861, 10 A.L.R.3d 1064

Willard HOOVER v. C. Vernon WILLIAMSON.

No. 8.

Court of Appeals of Maryland.

Oct. 13, 1964.

Harold Buchman, Baltimore, for appellant.

Alva P. Weaver, III, and Frank J. Vecella, Baltimore (Robert E. Coughlan, Jr., Lord, Whip, Coughlan & Green, G. C. A. Anderson, Anderson, Coe & King and Preston A. Pairo, Jr., Baltimore, on the brief), for appellee.

Argued before HENDERSON, C. J., and HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

HAMMOND, Judge.

Each year X-ray examinations of the chests of certain employees of General Electric Company are required by the company under the direction and supervision of Dr. C. Vernon Williamson, a physician who is paid for his services by the company. One of those who was so examined was the appellant, Willard Hoover, who had worked for the company for many years in a job which subjected him to exposure to silica dust.

Alleging that he has silicosis in serious and permanent form, which causes him pain and disability and results in medical expenses and loss of time from work, Hoover sued General Electric and Dr. Williamson in the Superior Court of Baltimore City for causing his condition. The count against General Electric which is not before us for consideration in this appeal was under an option in the Workmen's Compensation law, Code (1957), Art. 101, Sec. 44 ('If injury * * * results * * * from the deliberate intention of his employer to produce such injury * * * the employee * * * shall have the privilege either to take under this article or have cause of action against such employer, as if this article had not been passed.'). Judge Byrnes permitted amendment to the count of the declaration against Dr. Williamson and then sustained a demurrer to the amended count, as he had to the original count. Hoover appealed.

The amended count against Dr. Williamson, as particularized, alleges that Hoover has been exposed to silica dust for the seventeen years of his employment at General Electric, that four or five years prior to November 1, 1961, Dr. Williamson, 'a physician retained by said company,' in the course of an annual X-ray examination of his chest, 'purported to advise plaintiff concerning his condition,' that is, that he had 'a little infection on the lungs'--and that Dr. Williamson 'made representations to him, acting as plaintiff's physician, and also referred him to another consultant.' It is then alleged that the X-ray examination 'did, in fact, clearly reveal' to Dr. Williamson that Hoover had silicosis and that Dr. Williamson '* * * wilfully and deliberately concealed such knowledge from the plaintiff, affirmatively misrepresented to him the nature of his condition and concealed from him the recommendations * * *' of the consultant, with the result that his lung condition has become a serious and permanent disease which was caused by Dr. Williamson's breach of professional duty to Hoover as his physician and the wilful concealment of such condition.

The demurrer to the amended declaration says it lacks facts showing a physician-patient relationship; in the absence of such a relationship Dr. Williamson owed Hoover no duty; the referral of Hoover to a consultant did not, in itself, create a physician-patient relationship; Dr. Williamson was retained by the company and not by Hoover and any duty the doctor owed was to the company and not to Hoover and, finally, that the declaration showed on its face that Hoover knew or should have known of his condition more than three years prior to the filing of suit and is barred by limitations.

The appellee is right in his contention that ordinarily recovery for malpractice or negligence against a doctor is allowed only where there is a relationship of doctor and patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and the patient will pay for such treatment, and there has been a breach of professional duty to the patient. Thus, it has been held that there is not a doctor-patient relationship between: (a) a prospective or actual insured and the physician who examines him for the insurance company; or (b) a prospective or actual employee and the doctor who examines him for the employer. ¹

There is, however, a broader, a more fundamental rule of long standing under which a physician may incur a tort obligation which is nonconsensual and independent of contract. This is the general rule that one who assumes to act even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. Restatement, Torts, Sec. 325, says the law is that one who gratuitously undertakes to render services which he should recognize as necessary to another's bodily safety, and leads the other in reasonable reliance on the services to refrain from taking other protective steps, or to enter on a dangerous course of conduct, '* * * is subject to liability to the other for bodily harm resulting from the actor's failure to exercise reasonable care to carry out his undertaking.' See also 2 Harper and James, The Law of Torts, Sec. 18.6.

In Edwards v. Lamb, 69 N.H. 599, 45 A. 480, 50 L.R.A. 160, the wife of a patient was advised by the doctor that there was no danger in her helping him dress her husband's infected wound. She did so and became infected with septic poisoning and sued the doctor. In holding that a demurrer was properly overruled, the Court said:

'Nor is it necessary to decide whether, in the absence of any statement by the defendant, he would be liable. The case is one of positive action, not merely of failure to act. The declaration alleges that the defendant informed the plaintiff that there was no danger of infection, and when he did this he voluntarily assumed certain obligations. The fact that his duty, as to her, was merely to advise, and not to administer treatment, is immaterial. * * * That when he advised her he assumed the obligation to use due care in so doing is not open to doubt. * * * The gratuitous character of the services rendered to the plaintiff would not excuse the defendant's failure to exercise such care as the circumstances demanded.'

See also Harriott v. Plimpton, 166 Mass. 585, 44 N.E. 992; Beadling v. Sirotta, 41 N.J. 555, 197 A.2d 857, 860 ('Whether or not a physician-patient relationship exists, within the full meaning of that term, we believe that a physician in the exercise of his profession examining a person at the request of an employer owes that person a duty of reasonable care.'); DuBois v. Decker, 130 N.Y. 325, 29 N.E. 313, 14 L.R.A. 429; Johnson v. Borland, 317 Mich. 225, 26 N.W.2d 755; Louisell & Williams, Trial of Medical Malpractice Cases, p. 191 (1960, Supp.1963); 41 Am.Jur. Physicians & Surgeons Sec. 71, p. 193; 70 C.J.S. Physicians and Surgeons §§ 46 and 52, pp. 954 and 975; 2 Intramural L.Rev. 158. Cf. Merchants National Bank v. Morriss (1st Cir.), 269 F.2d 363; Andrews v. Davis, 128 Me. 464, 148 A. 684; Davis v. Rodman, 147 Ark. 385, 227 S.W. 612, 13 A.L.R. 1459; Jones v. Stanko, 118 Ohio St. 147, 160 N.E. 456.

It may be assumed that if Dr. Williamson had done no more than...