Medical Center of Cent. Georgia v. Landers

• Decision Date: 02 June 2005
• Docket Number: No. A05A0194.,A05A0194.
• Citation: 616 S.E.2d 808
• Parties: MEDICAL CENTER OF CENTRAL GEORGIA, INC. et al. v. LANDERS et al.
• Court: Georgia Supreme Court

Page 808

616 S.E.2d 808

MEDICAL CENTER OF CENTRAL GEORGIA, INC. et al. v. LANDERS et al.

No. A05A0194.

Court of Appeals of Georgia.

June 2, 2005.

Kevin Buice, Norah White, Pursley Lowery Meeks LLP, Atlanta, for Appellant.

Stanley Friedman, Janna Martin, Friedman & Martin, Savannah, for Appellee.

ELLINGTON, Judge.

Donald Landers brought this negligence action against his employer and against the doctor who performed his employment medical examination after both the employer and the doctor failed to advise Landers of the results of his chest x-ray. The trial court denied the doctor's motion for summary judgment, finding that, under regulations adopted to implement the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq., an employment examiner owes a duty to inform an examinee directly of all the results of an employment medical examination, including chest x-ray results which are not available until after the conclusion of the physical examination. Pursuant to the grant of his application for interlocutory review, the doctor appeals, contending he is entitled to judgment as a matter of law because an employment examiner owes no legal duty to an examinee. In addition, the doctor contends that Landers' employer's failure to provide Landers a copy of the x-ray report constitutes an intervening cause, entitling him to summary judgment. For the following reasons, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment.

(Citation omitted.) Scott v. Cushman & Wakefield, etc., 249 Ga.App. 264, 264-265, 547 S.E.2d 794 (2001).

The record shows the following undisputed facts. For about 20 years, Landers worked for North Brothers, Inc. and NB Environmental, Inc. (collectively, "North Brothers") as an insulation installer. As part of his job, Landers handled asbestos materials. Beginning in the early 1990s, North Brothers, in accordance with OSHA regulations, required Landers to submit to a yearly medical examination with a physician it chose and compensated. At the relevant time, North Brothers had a contract with Work Horizons, an occupational medicine practice, to perform employment medical examinations. The purpose of the required examination was to examine each asbestos worker for signs of asbestos-related diseases such as lung cancer and to certify that he was physically capable of using a negative-pressure respirator. On January 29, 1998, Vincent Greico, a Work Horizons doctor, performed Landers' annual employment medical examination which included a chest x-ray, pulmonary function or lung capacity test, and a physical examination of his upper body. Landers described the examination as brief and "limited," consisting of the doctor asking how he felt, listening to his lungs and chest, and looking in his throat and ears. At the conclusion of the exam, Greico told Landers his pulmonary function test and physical examination were fine and gave Landers a written report titled "Physician's Opinion" to take to North Brothers. In that document, Greico indicated that he had detected no medical conditions "that would place [Landers] at an increased risk of material health impairment from his planned `exposure to asbestos'" and that Landers was cleared to wear a respirator. Greico further certified that he informed Landers of the results of the examination and of any medical conditions that may result from asbestos exposure. Upon his return to work, Landers' supervisor told him that he "passed" the medical examination and was cleared to use a respirator.

In accordance with Greico's routine practice, Landers' x-ray was delivered to Work Horizons' affiliated hospital to be evaluated by a qualified "B-reader" or Board-certified radiologist.¹ The day after Landers' physical examination, a radiologist examined Landers' x-ray, noted a "vague opacity" in Landers' lung, and recommended "fluoroscopy to clarify the x-ray and to exclude parenchymal nodule." This was a serious finding for a patient who worked with asbestos, a known carcinogenic agent, and possibly indicated a life-threatening problem. Greico received this report and prepared a notice to North Brothers quoting the radiologist's findings and recommendation and indicating that Landers needed follow up with his personal physician. Despite his intention of notifying Landers of the radiologist's findings and recommendation, and despite having Landers' home telephone number and address on file, Greico took no action to relay the radiologist's report directly to Landers. Greico expected North Brothers to give Landers a copy of the notice.² North Brothers personnel, however, put the notice in Landers' personnel file without providing a copy to Landers.

A year later, Greico again performed Landers' annual medical examination, which included a chest x-ray. Without referring to Landers' 1998 chest x-ray or the radiologist's report during the examination, Greico cleared Landers to wear a respirator. Within a few days, Greico received a report on Landers' 1999 chest x-ray that again showed a spot on Landers' lung. Greico telephoned North Brothers to speak to Landers. Greico told Landers about the results of his most recent chest x-ray, and asked him what he had done about the situation since the 1998 x-ray. Alerted to the spot on his lung for the first time, Landers sought medical care and learned he had advanced lung cancer.

Landers brought this action for damages, and his wife asserted a claim for loss of consortium, against Greico and Greico's employer, the Medical Center of Central Georgia, Inc. and Central Georgia Health Systems, Inc., jointly doing business as Work Horizons (collectively, "Greico"),³ as well as against North Brothers.⁴ Landers alleges that the one-year delay in the diagnosis of his lung cancer allowed the disease to worsen, made treatment more difficult, and made the prognosis for successful treatment less favorable. After a hearing, the trial court denied Greico's motion for summary judgment, finding that Greico owed Landers a legal duty pursuant to OSHA regulations and that questions of material fact remained regarding whether Greico breached that duty.

1. In related arguments, Greico contends he is entitled to judgment as a matter of law because Landers failed to set out facts supporting the first element of a negligence claim, a duty of care.⁵

(a) Greico contends that OSHA regulations cannot support a finding of a legal duty because the regulations impose duties only on employers. We agree.

In this regard, Landers' theory of recovery is grounded in the federal Occupational Safety and Health Act, 29 USC § 651 et seq.; an OSHA regulation concerning toxic and hazardous substances, 29 CFR 1926.1101; and OCGA § 51-1-6.⁶ In adopting the Act, Congress intended "to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources" by, inter alia, "providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience." 29 USC § 651(b)(7).

As part of this scheme, the Secretary of Labor adopted a regulation providing for medical surveillance of workers who are required to wear negative-pressure respirators and whose work exposes them to a specified amount of asbestos. 29 CFR § 1926.1101(m)(1). The regulation requires every employer with such employees to institute a medical surveillance program under which the employer provides, at its expense, examinations by a physician. 29 CFR § 1926.1101(m)(2)(i). A medical examination must be provided before the employee begins working in the area where negative-pressure respirators are worn or where exposure to asbestos may be at or above a certain limit and at least annually thereafter. Id. Such an examination must include the following: a medical and work history "with special emphasis directed to the pulmonary, cardiovascular, and gastrointestinal systems"; a specified questionnaire which addresses many aspects of exposure to respiratory hazards;⁷ a physical examination "directed to the pulmonary and gastrointestinal systems," including a chest x-ray, pulmonary function tests; and "[a]ny other examinations or tests deemed necessary by the examining physician." 29 CFR 1926.1101 (m)(2)(ii)(A), (C), (D). The regulation provides in pertinent part:

The employer shall obtain a written opinion from the examining physician [which] shall contain the results of the medical examination and [which] shall include:

(A) The physician's opinion as to whether the employee has any detected medical conditions that would place the employee at an increased risk of material health impairment from exposure to asbestos;

(B) Any recommended limitations on the employee or on the use of personal protective equipment such as respirators; and

(C) A statement that the employee has been informed by the physician of the results of the medical examination and of any medical conditions that may result from asbestos exposure. . . .

29 CFR § 1926.1101(m)(4)(i). The regulation commands: "[t]he employer shall provide a copy of the physician's...