Promubol v. Hackett

Decision Date16 December 1996
Docket NumberX-R
Citation454 Pa.Super. 622,686 A.2d 417
PartiesYuwaree PROMUBOL and Mongkol Sitachitt, Her Husband, Appellants, v. A. Khine HACKETT; Lowry Radiology Associates, Inc., and K.S. Sheety, P.C. t/d/b/a Professionalay Associates.
CourtPennsylvania Superior Court

Paul A. Hilko, Pittsburgh, for appellants.

Daniel P. Carroll, Jr., Pittsburgh, for Hackett, appellee.

Before POPOVICH, FORD ELLIOTT and HESTER, JJ.

HESTER, Judge:

Yuwaree Promubol and Mongkol Sitachitt, her husband, appeal from the order granting summary judgment in this medical malpractice action to appellees, A. Khine Hackett, Lowry Radiology Associates, Inc., and K.S. Sheety, P.C. t/d/b/a Professional X-Ray Associates. We affirm.

The factual history of this unfortunate case centers upon the medical background of appellant Yuwaree Promubol. In February, 1993, appellant, who was plagued by a nagging cough for three weeks and was concerned that she may be suffering from pneumonia, ordered a chest x-ray. 1 The physician on duty who read the x-ray, noted a spot on appellee's left lung. Concerned, he compared the film to a previous chest x-ray taken in 1990 and noted that the spot, which was present in the 1990 chest x-ray, had grown in size. The physician ordered a CAT scan which confirmed the existence of a mass approximately 3 X 1.5 cm. Dr. Mariano performed a biopsy and consulted Dr. Tantisera, a chest and lung surgeon. Dr. Tantisera compared the 1993 chest film with the 1990 and a 1991 chest film and noted that a mass, present in the identical location to the 1993 film, had been reported as a "granuloma," in the 1991 film and was now two centimeters larger. On March 1, 1993, Dr. Tantisera performed a left upper lobectomy on appellant. The diagnosis of adenocarcinoma was confirmed. While the tumor was excised successfully, it had metastasized to the liver.

Appellant's past medical history reveals numerous prior x-rays. In 1985, appellant submitted to a chest x-ray required by her insurance company since she sought to purchase $100,000.00 worth of additional life insurance to cover mortgages on her two homes. In 1988, prior to a hysterectomy, appellant's chest was x-rayed in conjunction with a battery of pre-operation testing. In 1990, appellant once again underwent a chest x-ray for insurance purposes. In 1991, appellant, seeking to increase her life insurance to $1,000,000.00, was required to undergo a physical by her carrier, Baltimore Life Insurance Company of Maryland. The insurance company provided appellant with a list of physicians from which she could choose. Appellant selected Dr. George Hunter who ordered a series of tests including a chest x-ray. No physical exam was performed in conjunction with any of the insurance increases. 2

The 1991 chest film, which was ordered by Dr. George Hunter, was interpreted by Dr. A. Khine Hackett, a radiologist employed by Professional X-Ray Associates ("PXRA"). PXRA had contracted with Lowry Radiology Associates, the location where the x-ray was performed, to read the x-rays and issue reports. Dr. Hackett read the x-ray, prepared the report for Dr. Hunter and forwarded a copy of it to appellant Promubol. 3

In her report, Dr. Hackett concluded that the study was normal with the exception of a possibly calcified granuloma in the left upper lobe of the lung. The report reflected Dr. Hackett's observations, but contained no advice or recommendation for follow-up. In her deposition, Dr. Hackett testified that she thought the lesion was benign. Deposition of A. Khine Hackett, 10/10/95, at 58-61. She explained that since appellant Promubol was of Southeast Asian descent, like herself, she expected that the granuloma was scarring due to long-term tuberculosis exposure. 4

In this timely appeal, one issue is presented for review. Appellants request that we determine whether the trial court erred when it determined that no physician-patient relationship existed between appellant Promubol and appellee Hackett and entered the contested order granting summary judgment in favor of appellees.

Preliminarily, we note that our scope of review from a grant of summary judgment is plenary. See Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224 (1994); Mellon v. Barre-National Drug Co., 431 Pa.Super. 175, 636 A.2d 187 (1993); American States Insurance Co. v. Maryland Casualty Co., 427 Pa. Super. 170, 628 A.2d 880 (1993).

In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court's function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment should only be granted in those cases which are free and clear from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983).

Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court's conclusion that no genuine issue of material fact exists and [that] the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

American States Insurance Co. v. Maryland Casualty Co., supra, 427 Pa.Super. at 180-81, 628 A.2d at 885-86. Furthermore, we will not overturn a trial court's grant of summary judgment in the absence of either an error of law or a clear abuse of discretion. See Mellon v. Barre-National Drug Co., supra.

Acme Markets v. Federal Armored Express, 437 Pa.Super. 41, 45, 648 A.2d 1218, 1220 (1994). Utilizing these principles, we consider the appropriateness of the challenged summary judgment grant.

Appellants acknowledge that appellant Promubol's 1991 chest x-ray was performed pursuant to an insurance physical which was required before her requested increase in coverage would be permitted. Appellants do not dispute the fact that appellee Hackett evaluated appellant Promubol's chest x-ray due to the contract with Dr. Hackett's employer, Lowry Radiology Associates, and Dr. Promubol's insurer. While appellants accept that generally, a physician-patient relationship is not created where a physician examines a patient at the behest of an insurance company, they assert that the facts herein are distinguishable. Specifically, appellants contend that a physician-patient relationship was created herein when appellee Hackett sent appellant Promubol a copy of the x-ray report which was prepared for Dr. Hunter, the referring physician from Lowry Radiology Associates, who then notified the insurance company of the results.

Appellants assert that the trial court erred when it did not adopt appellants' analysis and granted summary judgment. Appellants seek to distinguish the long line of cases which hold that no physician-patient relationship exists where a patient is examined by a physician at the request of a third party. Appellants argue that by sending a copy of the x-ray report to appellant Promubol, Dr. Hackett was gratuitously rendering negligent advice and should be held accountable. The language appellants emphasize may be traced to Craddock v. Gross, 350 Pa.Super. 575, 504 A.2d 1300 (1986) (no theory of negligence may be advanced where plaintiff neither has employed defendant nor sought or received advice from defendant).

In order to prevail on a negligence claim, plaintiffs must prove the existence of four elements: a duty which requires the actor to perform according to accepted standards of care; a breach by the actor of the acceptable standards; causation between the conduct and the injury; and actual damages. Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606 (1985).

As stated supra, Pennsylvania courts have held that a patient may not succeed on an action in negligence against a physician where a third party has sponsored the medical examination of the patient. In accord with the principles to which we adhere, there is no relationship giving rise to a duty in these circumstances. The theory behind this simple principle follows.

The term malpractice denotes a breach of duty owed by one in rendering professional services to a person who has contracted for such services; in physician malpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar ... Plaintiff did not employ the defendant nor did [s]he seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship.

Tomko v. Marks, 412 Pa.Super. 54, 58, 602 A.2d 890, 892 (1992), quoting Craddock v. Gross, 350...

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  • Webb v. T.D.
    • United States
    • Montana Supreme Court
    • 13 Noviembre 1997
    ...Henkemeyer v. Boxall (Minn.Ct.App.1991), 465 N.W.2d 437; LoDico v. Caputi (1987) 129 A.D.2d 361, 517 N.Y.S.2d 640; Promubol v. Hackett (1996), 454 Pa.Super. 622, 686 A.2d 417; Tomko v. Marks (1992), 412 Pa.Super. 54, 602 A.2d 890; Craddock v. Gross (1986), 350 Pa.Super. 575, 504 A.2d 1300; ......
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    ...Superior Court cases that have found the lack of a duty between the physician and the examinee. See, e.g., Promubol v. Hackett, 454 Pa.Super. 622, 627, 686 A.2d 417, 420 (1996) (noting the absence of physician-patient relationship where the examination occurred at the behest of an insurance......
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    • U.S. District Court — Eastern District of Pennsylvania
    • 29 Junio 2001
    ...an action in negligence against a physician where a third party has sponsored the patient's examination. See Promubol v. Hackett, 454 Pa.Super. 622, 686 A.2d 417, 420-21 (1996) (physician owed no duty of care to patient when insurance company sponsored examination in connection with applica......
  • Promubol v. Hackett, X-R
    • United States
    • Pennsylvania Supreme Court
    • 25 Julio 1997
    ...K.S. Shetty, P.C. t/d/b/a Professional X-Ray Associates NO. 0018 W.D.ALLOC. (1997) Supreme Court of Pennsylvania July 25, 1997 454 Pa.Super. 622, 686 A.2d 417 Appeal from the Superior Disposition: Denied. ...

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