Mero v. Sadoff

• Citation: 31 Cal.App.4th 1466,37 Cal.Rptr.2d 769
• Decision Date: 31 January 1995
• Docket Number: No. B080747,B080747
• Court: California Court of Appeals Court of Appeals
• Parties: Maureen MERO, Plaintiff and Appellant, v. Armin SADOFF, M.D., Defendant and Respondent.

Page 769

37 Cal.Rptr.2d 769

31 Cal.App.4th 1466

Maureen MERO, Plaintiff and Appellant, v. Armin SADOFF, M.D., Defendant and Respondent.

No. B080747.

Court of Appeal, Second District, Division 1, California.

Jan. 31, 1995.

Horton Barbaro & Reilly and William O. Humphreys, Santa Ana, for plaintiff and appellant.

Kirtland & Packard and David S. Brown, Los Angeles, for defendant and respondent.

INTRODUCTION

SPENCER, Presiding Justice.

Plaintiff Maureen Mero appeals from a summary judgment in favor of defendant Armin Sadoff, M.D.

STATEMENT OF FACTS

The following facts are undisputed: On November 14, 1989, plaintiff injured her back while at work for Shell Oil Company (Shell). She filed a claim for workers' compensation benefits from Shell. At the time, Shell was self-insured.

In her claim, plaintiff complained of orthopedic injury, including back pain. In the workers' compensation action, Shell requested that plaintiff submit to an examination by defendant concerning her complaints of orthopedic injury; plaintiff agreed to do so.

Defendant had been retained by Shell's defense counsel, Mullen & Filippi, to perform a physical examination of plaintiff, to take and interpret x-rays, review medical records, and utilize testing devices in order to evaluate plaintiff's status for Shell. Defendant examined plaintiff on October 18, 1990. Defendant was not plaintiff's personal physician or orthopedist, and plaintiff did not pay for the examination. Defendant did not offer plaintiff any medical advice or a medical opinion. Plaintiff submitted to the examination only because Shell requested that she do so.

After the examination, defendant prepared a report for Mullen & Filippi containing his evaluation of plaintiff. Defendant was paid for his work by Shell. Plaintiff received a copy of the report; she did not rely on it for treatment or advice.

Plaintiff alleged in her complaint that she was injured when, during the course of defendant's examination, she was negligently "strapp[ed] ... into an apparatus which caused her body to be contorted and maneuvered in various damaging positions." As a result of this negligence, she suffered "a total collapse and deterioration of the spinal fusion at L5 performed in May of 1990 ... severe, permanent and disabling injuries as w[e]ll as great mental and physical pain, suffering and emotional distress." She additionally incurred medical bills and suffered a loss of earnings and earning capacity.

CONTENTIONS

I

Plaintiff contends the trial court erred in granting summary judgment, in that, even in the absence of a physician-patient relationship, a physician is liable to an examinee for negligence or medical malpractice for injuries incurred during the examination itself.

II

Plaintiff further contends summary judgment erroneously was granted, in that a negligent act which causes physical injury is not a broadcast or publication entitling the actor to immunity.

DISCUSSION

I

Plaintiff contends the trial court erred in granting summary judgment, in that, even in the absence of a physician-patient relationship, a physician is liable to an examinee for negligence or medical malpractice for injuries incurred during the examination itself. We agree.

It long has been held that an essential element of a cause of action for medical malpractice is a physician-patient relationship giving rise to a duty of care. (Felton v. Schaeffer (1991) 229 Cal.App.3d 229, 235, 279 Cal.Rptr. 713, review den. Aug. 1, 1991; Keene v. Wiggins (1977) 69 Cal.App.3d 308, 313-314, 138 Cal.Rptr. 3.) Thus, as a general rule, where a physician is hired by a third party to examine plaintiff and report on the results of that examination, the physician is not liable to plaintiff for negligence in conducting the examination and making the report. (Felton, supra, 229 Cal.App.3d at p. 235, 279 Cal.Rptr. 713; Keene, supra, 69 Cal.App.3d at pp. 313-314, 138 Cal.Rptr. 3.)

In Keene v. Wiggins, supra, 69 Cal.App.3d 308, 138 Cal.Rptr. 3, plaintiff was examined by defendant physician at the request of his workers' compensation carrier. He alleged medical malpractice in defendant's preparation of a report for the carrier, on which report plaintiff relied to his detriment. (At p. 311, 138 Cal.Rptr. 3.) Defendant obtained a summary judgment on the ground he owed no duty to plaintiff. (Id. at pp. 310-311, 138 Cal.Rptr. 3.)

The court observed that "[w]hen the physician-patient relationship exists, ... the patient has a right to expect the physician will care for and treat him with proper professional skills and will exercise reasonable and ordinary care and diligence toward the patient [citation]. This does not suggest, however, a doctor is required to exercise the same degree of skill toward every person he sees. The duty he owes to each varies with the relationship of the parties, the foreseeability of injury or harm that may be expected to flow from his conduct and the reliance which the person may reasonably be expected to place on the opinion received." (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 313, 138 Cal.Rptr. 3; see Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

It noted that cases from other jurisdictions "uniformly hold that where no physician-patient relationship exists the doctor's only duty is to conduct the examination in a manner not to cause harm to the person being examined." (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 313, 138 Cal.Rptr. 3.) Any duty to use the proper professional skills in preparing a report based on the examination runs to the person employing the physician to prepare the report, not the person being examined. (Ibid.)

Applying California's standards as set forth in Rowland v. Christian, supra, 69 Cal.2d at page 113, 70 Cal.Rptr. 97, 443 P.2d 561, the court concluded it was "apparent where a doctor conducts an examination of an injured employee solely for the purpose of rating the injury for the employer's insurance carrier in a workers' compensation proceeding, neither offers [n]or intends to treat, care for or otherwise benefit the person examined, and has no reason to believe the person examined will rely on this report, the doctor is not liable to the person being examined for negligence in making that report. His duty to observe a professional standard of care in the preparation of that report runs only to the carrier and to the employer requesting it." (Keene v. Wiggins, supra, 69 Cal.App.3d at pp. 313-314, 138 Cal.Rptr. 3.)

The physician could not reasonably expect that the examinee would rely on the report, inasmuch it is prepared for a person or persons with interests adverse to the examinee's own. (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 314, 138 Cal.Rptr. 3.) This is especially true where there is a dispute over benefits being offered to the examinee, and the purpose of the examination is to determine the level of benefits. (Ibid.) Given "the adverse relationship" between the physician as agent of the employer and/or carrier and the examinee, the court could not find the physician's conduct morally blameworthy. (Ibid.)

Based on its analysis, the court held defendant owed plaintiff "no duty of professional skill in connection with the report." (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 316, 138 Cal.Rptr. 3.) Therefore, summary judgment properly was granted. (Ibid.)

A similar result was reached in Felton v. Schaeffer, supra, 229 Cal.App.3d 229, 279 Cal.Rptr. 713, where defendants conducted a preemployment examination of plaintiff at the request of the employer. (At p. 234, 279 Cal.Rptr. 713.) The court held plaintiff had no medical malpractice claim against defendants; because there was no physician-patient relationship between plaintiff and defendants, any duty to use due care in evaluating plaintiff's condition was owed to the employer, not plaintiff. (Id. at pp. 234-235, 279 Cal.Rptr. 713.)

In reaching this result, the court relied on Keene. (Felton v. Schaeffer, supra, 229 Cal.App.3d at p. 235, 279 Cal.Rptr. 713.) It also pointed out: "We independently have reviewed out-of-state authorities and find overwhelming agreement that a physician has no liability to an examinee for negligence or professional malpractice absent a physician/patient relationship, except for injuries incurred during the examination itself." (Ibid., fn. omitted.)

Inasmuch as neither Keene nor Felton involved injuries incurred during the examination, as does the instant case, their statements that a physician may be held liable for medical malpractice for such injuries to an examinee even in the absence of a physician-patient relationship are dicta, without force as precedent. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 783, [31 Cal.App.4th 1473] pp. 753-755.) As noted by Witkin, however, "[t]o say that dicta are not controlling ... does not mean that they are to be ignored; on the contrary, dicta are often followed. A statement which does not possess the force of a square holding may nevertheless be considered highly persuasive, particularly when made by an able court after careful consideration, or in the course of an elaborate review of the authorities, or when it has been long followed." (Id., § 785, p. 756; accord, Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297, 262 Cal.Rptr. 754, review den. Dec. 13, 1989; Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212, 262 Cal.Rptr. 513, review den. Dec. 13, 1989.) Plaintiff here requests we follow the dicta in Keene and Felton, while defendant claims the authorities suggest the dicta should not be followed.

The parties have cited a number of out-of-state cases dealing with the issue. In Chiasera v. Employers Mut. Liability Ins. (1979) 101 Misc.2d 877 , cited by defendant, plaintiff was examined by a physician at the direction of his employer's workers' compensation carrier. He alleged he was injured by the physician during the course of the examination. The...