Martinez v. Lewis, 95CA1411

• Decision Date: 29 November 1996
• Docket Number: No. 95CA1411,95CA1411
• Citation: 942 P.2d 1219
• Parties: Yolanda MARTINEZ, Plaintiff-Appellant, v. Jeanne C. LEWIS, personal representative of the estate of Frederick A. Lewis, Jr., M.D., individually and d/b/a Frederick A. Lewis, M.D., P.C., Defendants-Appellees, and State Farm Mutual Automobile Insurance Company, Defendant. . I
• Court: Colorado Court of Appeals

Page 1219

942 P.2d 1219

Yolanda MARTINEZ, Plaintiff-Appellant, v. Jeanne C. LEWIS, personal representative of the estate of Frederick A. Lewis, Jr., M.D., individually and d/b/a Frederick A. Lewis, M.D., P.C. Defendants-Appellees and State Farm Mutual Automobile Insurance Company, Defendant.

No. 95CA1411.

Colorado Court of Appeals Div. I.

Nov. 29, 1996.

Rehearing Denied Dec. 27, 1996.

Certiorari Granted Sept. 2, 1997.

Fest, Jessel & Hemphill, LLC, Danny R. Hemphill, Bruce F. Fest, Boulder, Thomas D. Roberts, Asheville, NC, for Plaintiff-Appellant.

Kennedy & Christopher, P.C., Ronald H. Nemirow, Denver, for Defendant-Appellee Frederick A. Lewis, Jr., M.D., and Frederick A. Lewis, Jr., M.D., P.C.

Creamer and Seaman, P.C., Gregory R. Giometti, Thomas J. Seaman, Denver, for Defendant-Appellee State Farm Mutual Automobile Insurance Company.

Bahr Kreidle & Travis, P.C., Todd A. Travis, Michael P. Bahr, Littleton, Amicus Curiae for Colorado Trial Lawyers Association.

Campbell Latiolais & Ruebel, P.C., Colin C. Campbell, Denver, Amicus Curiae.

Richard W. Laugesen, Denver, Amicus Curiae.

Opinion by Judge MARQUEZ.

Plaintiff, Yolanda Martinez, appeals the summary judgment in favor of defendant Frederick A. Lewis, Jr., M.D., (Lewis) (now Estate of Frederick A. Lewis, Jr., and Jeanne C. Lewis, by substitution) in which the court held that Lewis, who was retained by defendant State Farm Mutual Automobile Insurance Company to perform independent medical evaluations of plaintiff, owed her no duty in performing the evaluations, and also dismissed her Colorado Consumer Protection Act claim. We affirm.

The following facts are undisputed. Plaintiff was injured in September 1991 when a vehicle driven by an uninsured motorist struck the rear of her car. Plaintiff subsequently sought treatment from a psychologist for cognitive and psychological difficulties she was experiencing and submitted the bills for her psychological treatment to State Farm, her automobile insurer, for payment.

State Farm retained Lewis to conduct, in March 1992, an independent medical examination of plaintiff and to render his opinions to State Farm regarding the nature and extent of her injuries. After reviewing the available medical records, interviewing plaintiff, and running a series of tests, Lewis reported to State Farm that in his opinion plaintiff was "malingering," and that further treatment was unnecessary. Based at least in part on Lewis' recommendation, State Farm decided to deny plaintiff future psychiatric or psychological care under her no-fault automobile insurance policy.

Plaintiff filed this action in September 1993 against State Farm alleging a violation of the no-fault statute, breach of contract, and breach of the duty of good faith and fair dealing. While preparing for trial, counsel for State Farm arranged for plaintiff to see Lewis for another evaluation. After reviewing her medical records, running more tests, and re-interviewing her, Lewis again reported to State Farm that his impressions were that plaintiff was a malingerer. In a third report issued in September 1994, Lewis reconfirmed his previous conclusions.

Plaintiff then amended her complaint to assert claims against Lewis for professional negligence and breach of the Colorado Consumer Protection Act. She alleged, inter alia, under her professional negligence claim, that Lewis was neither competent nor qualified to select, administer or interpret certain computerized neuropsychological test results, that because of Lewis' negligent misdiagnosis and recommendations, she had not been paid no-fault benefits or received necessary treatment, and that Lewis concealed the fact that he lacked certain qualifications regarding testing upon which he relied.

Lewis moved for summary judgment on both issues attaching to his motion various exhibits, including correspondence between Lewis and State Farm. In response, plaintiff submitted exhibits that included copies of portions of various depositions, correspondence, Lewis' reports, and documentation questioning Lewis' competence in neuropsychological testing. Lewis' motion was granted in its entirety. An order pursuant to C.R.C.P. 54(b) certifying the judgment as final was subsequently entered.

Lewis died during the pendency of this appeal, and the estate of Frederick A. Lewis, Jr., M.D., and the estate's personal representative, Jeanne C. Lewis, were substituted for Lewis.

I.

Plaintiff contends that Lewis owed her a duty to use due care in formulating any opinions, diagnosis, and recommendations which the insurance company would consider in its decision whether to deny no-fault benefits. We disagree.

A.

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; Greenberg v. Perkins, 845 P.2d 530 (Colo.1993).

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. Greenberg v. Perkins, supra.

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 v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988).

Appellate review of a judgment granting a motion for summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

To recover on a claim of negligence, a plaintiff must prove the existence of a legal duty, a breach of that duty, causation, and damages. Perreira v. State, 768 P.2d 1198 (Colo.1989). A negligence claim will fail if based on circumstances for which the law imposes no duty. University of Denver v. Whitlock, 744 P.2d 54 (Colo.1987).

Whether a defendant owes a plaintiff a legal duty is a question of law. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1980).

A court considers a variety of factors when determining whether to recognize a duty. For instance, the court weighs the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm, and the consequence of placing the burden on the defendant. Smith v. City & County of Denver, 726 P.2d 1125 (Colo.1986).

Since no one factor is controlling, the question whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards--whether reasonable persons would recognize and agree that it exists. University of Denver v. Whitlock, supra.

Medical malpractice or professional negligence is a particular type of negligence action. The duty of care on which a medical malpractice action is predicated arises out of the professional relationship between physician and patient. If a physician undertakes to treat or otherwise provide medical care to another, the physician thereby expressly or impliedly contracts to exercise reasonable and ordinary care and diligence to fulfill that purpose. In such a circumstance, a physician-patient relationship exists. Greenberg v. Perkins, supra.

In the absence of such a relationship, any duty to be recognized in connection with the performance of professional services must be determined in each instance by taking into account the nature of the services to be performed, the circumstances surrounding the request for service, and any information gleaned by the physician during performance of the services that would suggest a need to proceed with care in order to avoid injury to the person being examined. Greenberg v. Perkins, supra.

Although Greenberg v. Perkins, supra, was decided in the context of a C.R.C.P. 35(a) examination in which the parties agreed to the examination, we conclude that the principles set forth in that case govern here. In Greenberg, the examining doctor referred the plaintiff to an occupational conditioning center for an evaluation that consisted of a series of physical exercises designed to measure the plaintiff's strength and range of motion. Both the doctor and the therapist were made aware of plaintiff's previous back surgeries and injuries. Following the evaluation, the plaintiff began to experience pain in her lower back and eventually was forced into surgery to relieve the discomfort. The supreme court held that a physician who conducts an independent medical examination owes a duty of care to an examinee not to refer her for testing of a type that foreseeably will result in injury based on information known to the physician.

It is undisputed that plaintiff and Lewis neither had a physician-patient relationship nor an express contract. Alternatively, no facts in this case indicate that a contract for medical services arose by implication. Plaintiff does not contend that she sought medical advice or treatment from Lewis, that he advised her in any way, or that he failed to inform her of some unknown condition.

There is also no dispute that Lewis was retained solely by State Farm in order to review plaintiff's past medical records, perform his own examination, and report to State Farm what he believed to be the diagnosis, the prognosis, and other information about what treatment, if any, was necessary. The agreement between State Farm and Lewis was solely for the benefit of State Farm; at no time was Lewis to advise the patient on a recommended course of treatment.

In her deposition, which was attached to defendant's reply in support of his motion for summary judgment, plaintiff states that she knew nothing of Lewis' qualifications, background, or about the nature of the services he was going to be rendering. She simply agreed to meet with Lewis pursuant to the obligation in her insurance contract to attend medical examinations by physicians selected...