Stanley v. McCarver, CV-03-0099-PR.

CourtSupreme Court of Arizona
Citation208 Ariz. 219,92 P.3d 849
Docket NumberNo. CV-03-0099-PR.,CV-03-0099-PR.
PartiesChristine STANLEY, an individual, Plaintiff-Appellant, v. Robert R. McCARVER, Jr., M.D.; Osborn, Nelson & Carr Portable X-Ray, Inc., Defendants-Appellees.
Decision Date30 June 2004

92 P.3d 849
208 Ariz. 219

Christine STANLEY, an individual, Plaintiff-Appellant,
Robert R. McCARVER, Jr., M.D.; Osborn, Nelson & Carr Portable X-Ray, Inc., Defendants-Appellees

No. CV-03-0099-PR.

Supreme Court of Arizona, En Banc.

June 30, 2004.

92 P.3d 850
Karen L. Lugosi, P.C. by Karen L. Lugosi, Phoenix, Attorney for Plaintiff-Appellant

Kent & Wittekind, P.C. by Richard A. Kent, Phoenix, Attorney for Defendant-Appellee Robert R. McCarver, Jr., M.D.


BERCH, Justice.

¶ 1 This case presents the question whether a radiologist evaluating a chest x-ray for a pre-employment tuberculosis screening owes a duty to the examinee, and, if so, whether the standard of care imposes on the doctor the obligation to take reasonable steps to make known any serious abnormalities he observes.


¶ 2 Dr. Robert R. McCarver, Jr., a radiologist, evaluated a chest x-ray of nurse Christine Stanley as part of a pre-employment tuberculosis screening. The prospective employer, Mesa Christian Care ("MCC"), contracted with Osborn, Nelson & Carr Portable X-Ray, Inc. ("ONC"), to take the x-ray. Dr. McCarver interpreted the x-ray pursuant to an independent contract with ONC. Dr. McCarver concluded, and wrote in his report, that the x-ray showed abnormalities: a "small nodule overlying the right sixth rib" and a "patchy consolidated parenchymal pattern superimposing the right third rib anteriorly and interspace." Dr. McCarver sent the report to ONC, which forwarded it to MCC. Although company policy required

92 P.3d 851
MCC to notify Ms. Stanley of the results within seventy-two hours, MCC apparently did not do so. Approximately ten months later, Ms. Stanley was diagnosed with lung cancer

¶ 3 Ms. Stanley sued MCC, ONC, and Dr. McCarver, alleging that the Defendants "provided negligent and improper medical care" by failing to "timely and adequately diagnose and/or communicate to [her] the abnormality evident on her chest x-ray." She implies that she would have had a better chance of recovery had she learned of her cancer sooner and begun treatment earlier.

¶ 4 MCC declared bankruptcy and was dismissed from the action, and the trial court, relying on Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (App.1995), granted summary judgment to Dr. McCarver and dismissed ONC from the case. The court of appeals affirmed the order dismissing ONC, but reversed the grant of summary judgment to Dr. McCarver, holding that he did owe a duty to Ms. Stanley. Stanley v. McCarver, 204 Ariz. 339, 345, ¶¶ 21-22, 63 P.3d 1076, 1082 (App.2003). We granted Dr. McCarver's petition for review to determine whether he owed a duty to Ms. Stanley under the facts of this case. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution.


¶ 5 To maintain this negligence action, Ms. Stanley must show that Dr. McCarver had a legal obligation to protect her from injury or harm—a duty in the parlance of tort law. See Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Whether such a duty exists is a matter of law for this court to determine de novo. Id.

¶ 6 Despite the absence of a doctor-patient relationship between the parties, Ms. Stanley asserts that Dr. McCarver was required to use care and professional skill in reading her x-ray and to reasonably report the results of the x-ray. To determine whether a duty exists, courts examine several sources, including the state's statutes and controlling cases. Jefferson L. Lankford & Douglas A. Blaze, THE LAW OF NEGLIGENCE IN ARIZONA § 1.02 at 1-2 to 1-3 (3d ed.2003). But no Arizona statute addresses the issue before us and, other than the court of appeals decision in this case, no reported Arizona opinion has permitted recovery in the circumstances presented here. See Stanley, 204 Ariz. at 345, ¶ 21, 63 P.3d at 1082.

¶ 7 Duties may also arise from a special relationship between the parties, a relationship that may find its basis in contract, family relations, or undertakings. See Hislop v. Salt River Project Agric. Improvement and Power Dist., 197 Ariz. 553, 557, ¶ 21, 5 P.3d 267, 271 (App.2000). In keeping with the contract or "undertaking" bases, the traditional rule has been, as our dissenting colleague correctly notes, that a formal doctor-patient relationship was necessary before tort liability could be imposed for negligent diagnosis or care. See, e.g., Hafner, 185 Ariz. at 391, 916 P.2d at 1107 (finding no duty to claimant given an independent psychological examination for worker's compensation purposes because there was no doctor-patient relationship); see also Felton v. Schaeffer, 229 Cal.App.3d 229, 279 Cal.Rptr. 713 (1991); Peace v. Weisman, 186 Ga.App. 697, 368 S.E.2d 319 (1988). The requirement of a formal relationship has never been absolute, however. More than a century ago, for example, a Massachusetts court recognized that a doctor's failure to properly diagnose a patient referred by another could result in liability to the patient for negligence. See Harriott v. Plimpton, 166 Mass. 585, 44 N.E. 992 (1896) (remanding to jury case of fiancé sent to doctor by future father-in-law to rule out existence of venereal disease; misdiagnosis caused engagement to break up).

¶ 8 The requirement of a formalized relationship between the parties has been quietly eroding in several jurisdictions. See Betesh v. United States, 400 F.Supp. 238, 245-47 (D.D.C.1974); Dyer v. Trachtman, 470 Mich. 45, 679 N.W.2d 311, 314-15 (2004); Reed v. Bojarski, 166 N.J. 89, 764 A.2d 433, 442-43 (2001). It has been eroding in Arizona as well, and, when public policy has supported the existence of a legal obligation, courts have imposed duties for the protection of persons with whom no preexisting "relationship"

92 P.3d 852
existed. E.g., Lombardo v. Albu, 199 Ariz. 97, 99-100, ¶¶ 10-12, 14 P.3d 288, 290-91 (2000) (imposing duty on a purchaser's real estate agent to deal fairly with sellers); accord Tarasoff v. Bd. of Regents, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 340 (1976) (imposing duty on mental health workers to warn of threat of immediate harm to third party)

¶ 9 Indeed, at least one Arizona case has held that a formal doctor-patient relationship need not exist before a duty may be imposed on the doctor. See Diggs v. Ariz. Cardiologists, Ltd., 198 Ariz. 198, 199, 201, ¶¶ 2, 14, 8 P.3d 386, 387, 389 (App.2000). In Diggs, a cardiologist advised an emergency room doctor regarding Ms. Diggs' care, knowing that the ER doctor would rely on the advice. Id. at 202-03, ¶¶ 20-23, 8 P.3d at 390-91. In finding that the cardiologist owed Ms. Diggs a duty of reasonable care, the court reasoned that while an "express contractual physician-patient relationship clearly gives rise to a duty to the patient, the absence of such a relationship does not necessarily exclude a duty to the patient." Id. at 202, ¶ 14, 8 P.3d at 390. We agree.

¶ 10 The parties appear to agree that there was no traditional doctor-patient relationship between them. Nonetheless, Ms. Stanley maintains that a relationship between individuals such as that between herself and Dr. McCarver supports the imposition of a legal obligation to act for the benefit of the examinee. See William L. Prosser, HANDBOOK OF THE LAW OF TORTS § 42, at 244 (4th ed.1971); cf. Betesh, 400 F.Supp. at 245 (noting that "[e]ven in the absence of a doctor-patient relationship, a doctor who assumes to act must act carefully with respect to all aspects of the examination"). And in fact this court has recognized that the proper inquiry is whether a sufficient relationship exists between the parties to make it reasonable, as a matter of public policy, to impose a duty. Markowitz, 146 Ariz. at 356, 706 P.2d at 368; see also Green v. Walker, 910 F.2d 291, 296 (5th Cir.1990) (imposing limited doctor-patient relationship to correspond with the extent of the examination).

¶ 11 Although no previous Arizona case has considered the precise issue posed by this case, courts in other states have recognized that liability may be imposed in the absence of a doctor-patient relationship. In Green, 910 F.2d at 296, for example, the Fifth Circuit found, between an employee and the doctor conducting an annual physical, a limited doctor-patient relationship that was sufficient to give rise to a duty of care in conducting the examination and reporting its results. The Ninth Circuit Court of Appeals has similarly recognized an obligation to report abnormal results obtained during a pre-employment physical examination, despite the absence of a doctor-patient relationship. Daly v. United States, 946 F.2d 1467, 1468 (9th Cir.1991) (interpreting Washington law); see also Betesh, 400 F.Supp. at 245-47 (holding as a matter of Maryland law that employer-retained radiologists who observed abnormalities owed a duty of care and breached it by failing to notify the examinee); Meena v. Wilburn, 603 So.2d 866, 870 (Miss.1992) (observing that the absence of a doctor-patient relationship is merely one factor in determining the standard of care owed); Reed, 764 A.2d at 443 (finding that the absence of a traditional doctor-patient relationship does not preclude imposing a duty on the examining doctor, the fulfillment of which may require informing the patient of abnormalities); Meinze v. Holmes, 40 Ohio App.3d 143, 532 N.E.2d 170, 173-75 (1987) (containing dictum that insurer-retained doctors had a duty to communicate a significant risk of danger to the plaintiff, even in the absence of a doctor-patient relationship).2 Although the facts in

92 P.3d 853
these cases differ from those at issue before us, all these courts have recognized that in placing oneself in the hands of a medical professional, even at the request of one's employer or insurer, one may have a reasonable expectation that the "expert will warn of `any incidental dangers of which he is cognizant due to his peculiar knowledge of his specialization.'" Green, 910...

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