Rand v. Miller

• Decision Date: 05 September 1991
• Docket Number: No. 19795,19795
• Citation: 185 W.Va. 705,408 S.E.2d 655
• Court: West Virginia Supreme Court
• Parties: Joyce A. RAND, Plaintiff Below, Appellee, v. Susan W. MILLER, M.D., Defendant Below, Appellant.

Page 655

408 S.E.2d 655

185 W.Va. 705

Joyce A. RAND, Plaintiff Below, Appellee, v. Susan W. MILLER, M.D., Defendant Below, Appellant.

No. 19795.

Supreme Court of Appeals of West Virginia.

Submitted May 14, 1991.

Decided July 25, 1991.

Rehearing Denied Sept. 5, 1991.

Syllabus by the Court

A physician who undertakes to evaluate a prospective employee's medical records for the employer lacks a sufficient professional relationship with the employee to support a malpractice action. If the physician reports false information, a defamation action may be brought.

William F. Byrne, Stone, Gallagher & Byrne, Morgantown, and John M. Hedges, Charleston, for appellee.

Herbert G. Underwood and Matthew J. Mullaney, Steptoe & Johnson, Clarksburg, for appellant.

MILLER, Chief Justice.

This is an appeal from a final order of the Circuit Court of Monongalia County dated March 27, 1990, which denied the motion of the defendant below, Susan W. Miller, M.D., to set aside a jury verdict in favor of the plaintiff below, Joyce A. Rand. The issue presented is whether a physician who is hired by an employer to evaluate the medical records of prospective employees is guilty of malpractice when the physician renders an inaccurate medical opinion which prevents an applicant from getting a job. We conclude that in such circumstances the physician cannot be held liable for malpractice, and we reverse the judgment of the circuit court.

In November, 1987, the plaintiff applied for a position with the United States Postal Service at the Morgantown Post Office. As a former employee of the Postal Service, the plaintiff was eligible for reinstatement. ¹ After her interview, the plaintiff was told that the job was hers subject to the medical evaluation which was required of all prospective employees. The plaintiff was given a medical examination and assessment form, part of which was completed by her personal physician, Kimberly Stearns, M.D., after a physical examination. Although the form indicated that the plaintiff had suffered a back injury in an automobile accident in 1984, Dr. Stearns found the plaintiff "healthy," with no "restrictions of activity."

The plaintiff returned the completed form to the Post Office, which, in turn, forwarded it to the defendant, a physician with whom the Postal Service had contracted to screen the medical records of prospective employees and evaluate their fitness for duty. On December 4, 1987, after reviewing the medical assessment form, the defendant requested additional information concerning the injuries the plaintiff suffered in the automobile accident. She apparently was provided with records of the plaintiff's hospitalization and a lumbar CT scan.

On December 7, 1987, the defendant dictated a two-sentence report stating that although Dr. Stearns had found no disability resulting from the automobile accident, "after reviewing [the plaintiff's] past medical history, a personality disorder is detected." On or about December 30, 1987, the plaintiff was summoned to the Post Office. At that time, the plaintiff became aware of the contents of the defendant's report and that it had been made part of the plaintiff's employment application and personnel file. By letter dated February 3, 1988, the Postal Service advised the plaintiff that, following review of her personnel file, she was not being hired for the position.

On February 22, 1989, the plaintiff instituted an action against the defendant in the Circuit Court of Monongalia County for defamation and medical malpractice, among other grounds. The circuit court subsequently dismissed as time-barred the defamation claim, and trial commenced on February 7, 1990 on the malpractice claim. By special interrogatory, the jury, on February 12, 1990, rendered a verdict in favor of the plaintiff in the amount of $665,000. The circuit court subsequently denied defense motions for a new trial and for judgment notwithstanding the verdict.

On appeal, the defendant asserts that the trial court erred in allowing the case to go to the jury on the malpractice claim. The defendant contends that there was no doctor-patient relationship between her and the plaintiff which would give rise to a duty of care, the breach of which would justify a medical malpractice action.

The essence of a medical malpractice action is a physician-patient relationship. We recognized as much in Weaver v. Union Carbide Corp., 180 W.Va. 556, 378 S.E.2d 105 (1989), where we refused to allow the plaintiff to maintain a malpractice action against a marriage counselor with whom the plaintiff's husband had become romantically involved after seeking professional counseling. In Syllabus Point 1, in part, we held that the actions of the marriage counselor could give rise to a malpractice action on the part of the patient:

"It is generally recognized that sexual intimacy with a patient, induced by a marriage or other counselor, is a form of malpractice permitting recovery of damages for emotional distress and other harm resulting from the malpractice. The basis of the malpractice is the trust relationship that arises from such counseling services which are designed to improve the mental and emotional well being of the patient."

We also recognized, however, that the plaintiff wife did not have a professional relationship with the counselor and held, in Syllabus Point 3, in part: "The lack of any professional relationship between the counselor and the uncounseled spouse forecloses the malpractice claim." See also Sisson v. Senceca Mental Health/Mental Retardation Council, 185 W.Va. 33, 404 S.E.2d 425 (1991).

Other courts have concluded that where a physician is hired by an employer to conduct a physical examination of an actual or prospective employee, ordinarily there is no professional relationship upon which to base a medical malpractice claim by such employee. The general rule was stated in Ervin v. American Guardian Life Assurance Co., 376 Pa.Super. 132, 136, 545 A.2d 354, 357 (1988), appeal denied, 522 Pa. 604, 562 A.2d 826 (1989):

" '[A] physician who is retained by a third party to conduct an examination of another person and report the results to the third party does not enter into a physician-patient relationship with the examinee and is not liable to the examinee for any losses he suffers as a result of the conclusions the physician reaches or reports.' Proof of Facts: Existence of Physician and Patient Relationship, 46 P.O.F.2d 373, 384."

In Keene v. Wiggins, 69 Cal.App.3d 308, 313, 138 Cal.Rptr. 3, 7 (1977), the court recognized, referring to the Annotation in 10 A.L.R.3d 1071 (1966), that other jurisdictions had "uniformly" held:

"[W]here 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. The physician acts as an agent of the person requesting the examination ... and absent special circumstances, his duty to observe good standards of professional skill in reporting the results of the examination runs only to the person employing him." (Footnote omitted; citation omitted).

See Ewing v. St. Louis-Clayton Orthopedic Group, Inc., 790 F.2d 682 (8th Cir.1986); Peace v. Weisman, 186 Ga.App. 697, 368 S.E.2d 319 (1988); Thomas v. Kenton, 425 So.2d 396 (La.App.1982); Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964); Ryans v. Lowell, 197 N.J.Super. 266, 484 A.2d 1253 (1984); LoDico v. Caputi, 129 A.D.2d 361, 517 N.Y.S.2d 640 (1987), appeal denied, 71 N.Y.2d 804, 528 N.Y.S.2d 829, 524 N.E.2d 149 (1989); Johnston v. Sibley, 558 S.W.2d 135 (Tex.Civ.App.1977); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.1963); Wilcox v. Salt Lake City Corp., 26 Utah 2d 78, 484 P.2d 1200 (1971). See also Tompkins v. Pacific Mut. Life Ins. Co., 53 W.Va. 479, 44 S.E. 439 (1903). See generally 61 Am.Jur.2d Physicians, Surgeons, & Other Healers §§ 297, 298 (1981); Annot., 10 A.L.R.3d 1071.

Where it is alleged that inaccurate information or an erroneous diagnosis contained in the examining physician's report causes the person examined to lose his job or some other valuable economic benefit, the same reasoning applies. In Felton v. Schaeffer, 229 Cal.App.3d 229, 279 Cal.Rptr. 713 (1991), the plaintiff was not hired for a job as a school maintenance supervisor because his preemployment physical erroneously showed that he was not taking his prescribed high-blood pressure medication regularly. The plaintiff filed a malpractice action against both the doctor who conducted the physical examination and the doctor who, without examining the plaintiff, reviewed the medical findings. After reviewing the authorities elsewhere, the court noted "overwhelming agreement" among other jurisdictions "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." 229 Cal.App.3d at 235, 279 Cal.Rptr. at 716. Accord Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975).

The appellee points out that there are several cases which reach an opposite conclusion. Both Olson v. Western Airlines, Inc., 143 Cal.App.3d 1, 191 Cal.Rptr. 502 (1983), and Armstrong v. Morgan, 545 S.W.2d 45 (Tex.Civ.App.1976), stand for the proposition that even in the absence of a doctor-patient relationship, a doctor may be liable to one he examines on behalf of an employer for providing inaccurate information or an erroneous diagnosis which causes the employee to lose a job or some other economic benefit. ² In both cases, the physician was found to have a duty to conduct the examination so as not to injure the plaintiff, physically or otherwise. In Armstrong, liability was premised in great part on the principle, recited in an earlier Texas case, that " 'the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.' " Childs v. Greenville Hosp. Auth., ...