Peace v. Weisman

Decision Date02 March 1988
Docket NumberNo. 75144,75144
Citation368 S.E.2d 319,186 Ga.App. 697
PartiesPEACE v. WEISMAN.
CourtGeorgia Court of Appeals

Albert E. Jones, Marietta, for appellant.

Paul J. Quiner, James M. Head, Jr., Judson Graves, Atlanta, for appellee.

Gene MacWinburn, Athens, Gregory C. Sowell, Tifton, Thomas W. Bennett, Macon, amici curiae.

BANKE, Presiding Judge.

The appellant and her husband (now deceased) sued the appellee physician for alleged medical malpractice. Following her husband's death, the appellant was named executrix of his estate and was substituted for him in that capacity. She appeals the grant of the appellee's motion for summary judgment.

In 1985, the appellant's husband, Mr. Peace, applied for social security disability benefits. The Disability Determination Service of the Georgia Department of Human Resources (DHR) required him to undergo a consultative medical examination to determine whether a previously diagnosed heart condition would prevent him from assuming his former occupation. The appellee, a board certified specialist in the areas of cardiology and internal medicine, conducted the consultative examination at the direction of the DHR for the sole purpose of rendering a medical opinion to the DHR concerning Mr. Peace's ability to work.

The appellee neither recommended any treatment nor rendered any advice to Mr. Peace during the course of the examination but, in response to his inquiry about the results of the examination, merely informed him that the information would be contained in a report to the DHR. Included in the subsequent report sent by the appellee to the DHR was an evaluation of a routine chest X-ray which had been taken as part of the examination. In this evaluation, the appellee noted that there was "a peculiar fullness in both hilar areas which may reflect prominent hilar lymph nodes."

Mr. Peace was subsequently advised by the DHR that his application for disability benefits had been denied on the basis of the physical examination. He did not request, nor was he provided, a copy of the appellee's report. Approximately four months after undergoing the consultative examination, Mr. Peace became aware of a lump in his neck, and soon thereafter he was diagnosed as having lung cancer. In April of 1986, despite months of cancer treatment, he died as a result of the disease.

The complaint alleges that the appellee committed medical malpractice by failing to diagnose Mr. Peace's lung cancer in a timely manner, thereby allowing the malignancy to progress to its terminal stages. In granting summary judgment to the appellee, the trial court determined as a matter of law that no physician-patient relationship had ever existed between the appellee and Mr. Peace and therefore that no action based on medical malpractice could be maintained. Held:

1. It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of physician-patient relationship. "[T]here are three essential elements imposing liability upon which recovery is bottomed: (1) The duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." Hawkins v. Greenberg, 166 Ga.App. 574, 575, 304 S.E.2d 922 (1983). See also OCGA § 51-1-27. "In such cases, called 'classic medical malpractice actions' ..., doctor-patient privity is essential because it is this 'relation ... which is a result of a consensual transaction' that establishes the legal duty to conform to a standard of conduct. [Cit.]" Bradley Center v. Wessner, 250 Ga. 199, 201, 296 S.E.2d 693 (1982), affirming 161 Ga.App. 576, 287 S.E.2d 716 (1982). See also Clanton v. Von Haam, 177 Ga.App. 694(2), 340 S.E.2d 627 (1986); Brumbalow v. Fritz, 183 Ga.App. 231, 358 S.E.2d 872 (1987). The relationship is considered consensual where the "patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient." Buttersworth v. Swint, 53 Ga.App. 602, 603, 186 S.E. 770 (1936).

While the precise issue presented by this case appears to be one of first impression in Georgia, it has been held almost uniformly in other jurisdictions that a physician who has been retained by a third party to undertake a medical examination of an individual cannot be held liable to that individual for malpractice as a result of that examination, where he neither offered nor intended to treat, care for, or otherwise benefit the individual and did not injure him during the course of the examination. See Johnston v. Sibley, 558 S.W.2d 135 (Tex.Civ.App.1977) (summary judgment granted to physician who evaluated employee's disability claim for workers' compensation insurance carrier); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.1963) (physician conducting pre-employment physical not liable in malpractice for failing to inform examinee that X-ray disclosed tuberculosis); Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3 (1977) (physician's alleged failure to advise workers' compensation claimant of a medical condition did not give rise to a cause of action for medical malpractice). A different result is, of course, mandated where the physician did assume the role of treating the patient. See, e.g., Phillips v. Good Samaritan Hosp., 65 Ohio App.2d 112, 416 N.E.2d 646 (1979); Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974); Keene v. Methodist Hosp., 324 F.Supp. 233 (N.D.Ind.1971).

While Mr. Peace testified prior to his death that he believed a physician-patient relationship had existed between himself and the appellee during the consultative examination, we must agree with the trial court that the objective evidence negated the existence of such a relationship as a matter of law, leaving no basis for an inference that the appellee was acting on Mr. Peace's behalf at any time during the examination. Accord Buttersworth, supra, 53 Ga.App. at 603, 186 S.E.2d 770. It follows that the appellant cannot recover on the basis of professional malpractice.

2. The appellant contends that, pursuant to OCGA § 51-1-27, the appellee was under an absolute statutory duty to perform his services in a skillful manner, regardless of whether a physician-patient relationship existed. That Code section provides as follows: "A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury, resulting from a want of such care and skill shall be a tort for which a recovery may be had." However, the statutory duty imposed therein has never been deemed to arise independently of the physician-patient relationship. "[B]efore a plaintiff may recover on the theory that he received negligent treatment from a defendant physician, the plaintiff must show that a doctor-patient relationship existed between them" Bradley Center v. Wessner, supra, 250 Ga. at 201, 296 S.E. 693. Thus, OCGA § 51-1-27 does not address the situation before us, since the appellee did not undertake to perform any service for Mr. Peace. In the absence of a physician-patient relationship, the appellee's only duty to Mr. Peace was to conduct the examination in such a manner as not to injure him. Accord Johnston v. Sibley, supra; Keene v. Wiggins, supra; Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975).

3. Relying on Bradley Center v. Wessner, supra, the appellant contends that the appellee may be held liable for the violation of a duty owed to the public at large to avoid injuring anyone who might forseeably be affected by his acts and omissions in a professional capacity. The defendant-physician in Wessner was sought to be held liable for the death of an individual killed by a mental patient whose temporary release from confinement had been authorized by the physician. The court held that where, in the course of treatment, a physician exercises control over the freedom of a mental patient, and where it is reasonably forseeable that the patient will cause bodily harm to others if released from confinement, a person so injured may maintain a cause of action against the physician, regardless of privity. While the court cautioned that physician-patient privity continued to be essential in "classic medical malpractice actions," it determined that the legal duty at issue in that case was not that of a doctor to a patient, but a manifestation of "the general duty one owes to all the world not to subject them to an unreasonable risk of harm." Id. at 201, 296 S.E.2d 693.

We find the reasoning in Wessner to be inapplicable to the present case. Here, the alleged injury arose not from the criminal act of an individual under the physician's care and control but from the physician's failure to advise the injured person of the results of a medical examination which the physician had performed on that person. This alleged breach of duty properly falls under the heading of "classical medical malpractice," for which privity continues to be an essential ingredient.

4. Finally, we reject the appellant's contention that the appellee may be held liable on the theory that he breached a duty created by certain Social Security Administration "guidelines" which are contained in a publication known as the "Disability Insurance State Manual." The alleged duty created by these guidelines was to notify an examinee's attending physician of any previously undiagnosed condition that might require immediate treatment. Assuming arguendo that these guidelines had the force of law, our review of the provisions in question, as cited to us by both parties, reveal that they apply not to the consultative examining physician but to the Disability Determination Service itself, i.e., to the administrators responsible for reviewing the examining physician's...

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    ...some duty owed by the physician to the examinee outside of the physician/patient relationship, citing the dissent in Peace v. Weisman, 186 Ga.App. 697, 368 S.E.2d 319 (1988). That dissent argues that the application of the strict definition of physician/patient relationship produces the "in......
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    ...patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient." (citing Peace v. Weisman, 368 S.E.2d 319 (Ga. Ct. App. 1988); Bradley Ctr., Inc. v. Wessner, 296 S.E.2d 693 (Ga. 1982)), with Oja v. Kin, 581 N.W.2d 739, 741 (Mich. Ct. App. 1998) ......

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