Johnston v. Sibley, 1054

• Decision Date: 17 November 1977
• Docket Number: No. 1054,1054
• Citation: 558 S.W.2d 135
• Court: Texas Court of Appeals
• Parties: Thomas H. JOHNSTON, Jr., Appellant, v. George W. SIBLEY, Appellee.

Page 135

558 S.W.2d 135

Thomas H. JOHNSTON, Jr., Appellant,

v. George W. SIBLEY, Appellee.

No. 1054.

Court of Civil Appeals of Texas, Tyler.

Nov. 17, 1977.

Rehearing Denied Dec. 8, 1977.

Guy W. Rucker, Richardson, for appellant.

Timothy R. McCormick, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.

MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff, Thomas H. Johnston, Jr., brought suit for damages against defendant, Dr. George W. Sibley, for medical malpractice. Plaintiff alleged that he was referred to Dr. Sibley by Fireman's Fund Insurance Company for an evaluative examination in connection with his claim against the insurance company for workmen's compensation benefits; that the doctor negligently failed to diagnose his disability and issued a report to the insurance company showing he suffered no disability whereas he was, and still is, suffering from at least permanent partial disability. He alleged that such negligent conduct resulted in a denial of his claim for workmen's compensation insurance, as well as other benefits, and prayed for damages.

Defendant answered with a general denial and filed a motion for summary judgment under the provisions of Rule 166-A, Tex.R.Civ.P. As grounds for a summary judgment, defendant alleged that under the undisputed summary judgment proof no physician-patient relationship existed between the plaintiff and the doctor and therefore, as a matter of law, the doctor owed no duty and breached no duty owed to the plaintiff. Plaintiff did not reply to the motion. After a hearing the trial court entered an order reciting that no genuine issue of material fact was left to be determined by the court or the jury and that the defendant was entitled to judgment as a matter of law, from which judgment plaintiff duly perfected this appeal.

We affirm.

By a single point of error, the plaintiff contends that the court erred in granting the summary judgment, because the doctor owed him a legal duty to exercise ordinary care in making the examination and reporting his findings, irrespective of the fact that the doctor was employed and paid by the insurance company. In reply the defendant contends that, in the absence of a "physician-patient" relationship, no legal duty to the plaintiff arose and the trial court properly disposed of the matter by a summary judgment.

The facts are undisputed. According to the summary judgment proof, Thomas H. Johnston, Jr., was employed by A. F. Holman Boiler Works where he claimed to have sustained a compensable injury on August 13, 1974. He submitted a claim for workmen's compensation benefits to Fireman's Fund American Insurance Company, Holman's insurer. In an effort to assess its liability upon the claim the insurance company retained the defendant, Dr. George W. Sibley, to examine the plaintiff for the purpose of determining (1) the nature and extent of any orthopedic disease or injury and (2) whether the plaintiff was suffering from any disability because of any such injuries. Dr. Sibley was retained solely at the request of Fireman's Fund American Insurance Company and all fees for services rendered by him were paid by the insurance company. At the time he conducted the examination, Dr. Sibley was acting as a consultant for the insurance company and his report was prepared for use by the insurance company in evaluating the merits of the claim and for use in any proceedings that might be brought before the Industrial Accident Board. At no time did Dr. Sibley accept the plaintiff as his patient, nor does plaintiff contend that a physician-patient relationship existed. While Fireman's Fund American Insurance Company is not a party to the suit, plaintiff is obviously pursuing a claim adverse to the interests of the insurance company. The record shows that the judicial report was addressed Fireman's Fund American Insurance Company. ¹ How the plaintiff obtained a copy of the report is not disclosed. The plaintiff makes no contention that he suffered any bodily injury during the course of the physical examination or that the doctor made any oral representations to him with regard to the medical findings.

No Texas case has been found dealing with a physician's duties and liabilities to a person examined pursuant to the physician's contract with that person's workmen's compensation insurer.

We have found only two cases from other jurisdictions which we consider to be directly in point. These cases hold, under practically the same facts, that no cause of action for medical malpractice exists. Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3 (1977); Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975).

It is a well established principle of law that a physician is liable for malpractice or negligence only where there is a physician-patient relationship as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill, and there is a breach of professional duty to the patient. Keene v. Wiggins, supra. See also Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App. Dallas 1963, writ ref'd n.r.e.); Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App. Dallas 1969, no writ). Whether any such duty arises when a physician examines a person not for the purpose of medical treatment is discussed in 10 A.L.R.3d 1071 (1966). The authorities reported there uniformly hold that in such cases no physician-patient relationship exists and thus the doctor's only duty is to conduct the examination in a manner not to cause harm to the person...