Sexton v. Petz, Docket No. 95614

• Decision Date: 27 September 1988
• Docket Number: Docket No. 95614
• Citation: 170 Mich.App. 561,428 N.W.2d 715
• Parties: Donald SEXTON and Mary Lou Sexton, Plaintiffs-Appellees, v. Thomas PETZ, M.D., Defendant-Appellant. 170 Mich.App. 561, 428 N.W.2d 715
• Court: Court of Appeal of Michigan — District of US

Page 715

428 N.W.2d 715

Donald SEXTON and Mary Lou Sexton, Plaintiffs-Appellees, v. Thomas PETZ, M.D., Defendant-Appellant.

Docket No. 95614.

170 Mich.App. 561, 428 N.W.2d 715

Court of Appeals of Michigan.

Submitted May 10, 1988.

Decided Aug. 15, 1988.

Released for Publication Sept. 27, 1988.

[170 MICHAPP 562] Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by David K. Barnes, Jr., Detroit, for plaintiffs-appellees.

Schureman, Frakes, Glass & Wulfmeier by Charles D. Brown, Detroit, for defendant-appellant.

Before McDONALD, P.J., and KELLY and LaVOY, ^* JJ.

KELLY, Judge.

Defendant brings this interlocutory appeal from the trial court order that denied in part defendant's motion for summary disposition. Plaintiffs' complaint alleged medical malpractice, negligence, intentional infliction of emotional distress and gross negligence. Summary disposition was granted to defendant on the malpractice and intentional infliction of emotional distress claims pursuant to MCR 2.116(C)(10); there being no genuine issue of material fact, defendant was entitled to judgment as a matter of law. Defendant argues that the remaining two counts, negligence and gross negligence, should likewise have been dismissed. We agree and reverse.

Plaintiff husband was an employee of the City of [170 MICHAPP 563] Jackson Fire Department and at the time in question was the chief fire inspector. In January, 1983, he developed severe chest pains and was diagnosed as having arteriosclerotic heart disease. Consequently, a triple coronary bypass operation was performed within approximately one month of plaintiff's diagnosis.

After surgery plaintiff filed a workers' compensation claim, alleging that his disease was caused by his employment. For this reason, plaintiff was requested to submit to a physical examination. Defendant performed that examination.

Following the examination, defendant concluded that the disease was not a result of plaintiff's employment as a fire fighter. Defendant also reported that plaintiff was "physically capable of resuming employment as previously performed for the City of Jackson." Thereafter, plaintiff returned to work and on October 15, 1983, while investigating a fire, plaintiff attempted to lift a heavy object, causing his surgical scar to rupture. This action followed.

In denying defendant's motion for summary disposition on the two counts, the trial court, relying in part on Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975), stated that "a physician owes a duty to a person that he or she is examining at the request of an employer to use reasonable care in conjunction with such examination and the reporting of the results of such examination."

In Rogers, plaintiff's compensation benefits were terminated and she filed a claim for continuation with the Bureau of Workmen's Compensation. Her employer then sent plaintiff to be examined by a physician who reported to the employer and testified at a subsequent hearing that there was nothing wrong with plaintiff. Thereafter, Rogers [170 MICHAPP 564] brought an action against the doctor, alleging malpractice, fraud and libel. In regard to plaintiff's malpractice claim, the Rogers Court stated at 647:

"Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship. This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person. Rather, we hold that the physician in such a case does not owe such a duty of care as will subject him to liability for malpractice."

As is evident from this quotation, the Rogers Court was not faced with deciding whether or not claims of negligence and gross negligence are available in the within situation, that is, where plaintiff brings a cause of action against a doctor who performed an examination at the request of an employer and reported to the employer that the plaintiff was able to return to work.

A similar situation was presented in MacDonald v. Barbarotto, 161 Mich.App. 542, 411 N.W.2d 747 (1987). In MacDonald, plaintiff was disabled from employment and was required to submit to a medical examination. The examination was conducted by a chiropractor who, when asked, reported to the employer that plaintiff was not disabled and could return to work. Plaintiff then returned to work and was soon reinjured.

Plaintiff MacDonald's original complaint brought a malpractice claim...