Stanley v. McCarver

• Decision Date: 25 February 2003
• Docket Number: No. 1 CA-CV 02-0328.,1 CA-CV 02-0328.
• Citation: 204 Ariz. 339,63 P.3d 1076
• Parties: Christine STANLEY, an individual, Plaintiff-Appellant, v. Robert R. McCARVER, Jr., M.D.; Osborn, Nelson & Carr Portable X-Ray, Inc., Defendants-Appellees.
• Court: Arizona Court of Appeals

63 P.3d 1076

204 Ariz. 339

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

No. -0328.

Court of Appeals of Arizona, Division 1, Department D.

February 25, 2003.

Karen L. Lugosi, P.C. By Karen L. Lugosi, Phoenix, Attorney for Appellant.

Kent & Wittekind, P.C. By Richard A. Kent, Phoenix, Attorneys for Appellee McCarver.

Renaud, Cook & Drury, P.A. By John A. Klecan and Michael R. Sneberger, Phoenix, Attorneys for Appellee Osborn, Nelson & Carr Portable X-Ray.

OPINION

EHRLICH, Judge.

¶ 1 Christine Stanley appeals from an order dismissing Osborn, Nelson & Carr Portable X-Ray, Inc. ("ONC") from her lawsuit and from summary judgment in favor of Robert R. McCarver, Jr., M.D. For reasons that follow, we affirm the dismissal of ONC, but we reverse the judgment in favor of Dr. McCarver.

BACKGROUND

¶ 2 For employment purposes, Mesa Christian Care ("MCC") asked Stanley to undergo a chest x-ray, which she did. An ONC technician took the x-ray, and Dr. McCarver, a radiologist, interpreted the film. Dr. McCarver reported to MCC "a confluent exaggeration of parenchymal markings superimposing the right third rib and interspace anteriorly... with implications for pneumonia or scarring from old pneumonitis ... [A] nodule density overlying the right sixth rib anteriorly is also noted." Although MCC's policy and procedures stated that the "results of the examination [would be] communicated to the applicant/employee within 72 hours," Stanley was not informed of Dr. McCarver's findings. Ten months later, Stanley was diagnosed with lung cancer that, she alleges, would have been diagnosed more quickly if she had been notified of Dr. McCarver's report.

¶ 3 Stanley sued Dr. McCarver and ONC for negligence.¹ The superior court, relying on Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (App.1995), granted Dr. McCarver summary judgment because he "did not offer or intend to treat, care for or otherwise benefit the employee" and therefore lacked the requisite physician-patient relationship with Stanley. Adding that, "[i]f there was a duty, it would be only a duty to inform [Stanley] of the results," which "should have" been accomplished by MCC, the court similarly granted ONC's motion to dismiss. Stanley appealed.

DISCUSSION²

¶ 4 The issue presented is whether a radiologist, to whom a person is referred, but not by a healthcare provider, who detects a medical condition for which further inquiry or treatment is appropriate, has a duty to inform that person. We conclude that the radiologist does have such a duty.

A. Dr. McCarver's Liability

¶ 5 The question of a physician's duty in this setting has been addressed differently among courts nationwide. Reed v. Bojarski, 166 N.J. 89, 764 A.2d 433, 437 (2001). The courts of some jurisdictions have construed the duty narrowly and declined to impose liability absent the presence of a traditional physician-patient relationship. Id. at 438. See, e.g., Felton v. Schaeffer, 229 Cal.App.3d 229, 279 Cal.Rptr. 713 (1991)(holding that physician not liable based on alleged mis-diagnosis during pre-employment examination absent traditional physician-patient relationship); Peace v. Weisman, 186 Ga.App. 697, 368 S.E.2d 319 (1988)(holding that physician not liable absent traditional physician-patient relationship); Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975)(holding that absence of traditional physician-patient relationship precludes physician liability). In contrast, the courts of other jurisdictions have extended the duty owed by a physician to a patient to settings beyond that of a traditional physician-patient relationship. See, e.g., Daly v. United States, 946 F.2d 1467, 1470 (9th Cir.1991)(holding under Washington State law that physician owes duty to person examined for employment because person "foreseeably endangered when examining physicians fail to make known abnormal findings"); Green v. Walker, 910 F.2d 291, 296 (5th Cir.1990)(holding under Louisiana law that physician has relationship with person examined as condition of employment); Meena v. Wilburn, 603 So.2d 866, 869-70 (Miss.1992)(holding that physician liability for negligence does not depend on physician-patient relationship); Reed, 764 A.2d at 443 (holding that physician performing pre-employment physical examination has non-delegable duty to inform patient of potentially serious medical condition). In particular, a "line of cases acknowledges that, even in the absence of a traditional physician-patient relationship in the pre-employment physical context, there is a disclosure requirement where the examination reveals a medical abnormality." Reed, 764 A.2d at 439 (discussing Deramus v. Jackson Nat'l Life Ins. Co., 92 F.3d 274 (5th Cir.1996),cert. denied, 519 U.S. 1115, 117 S.Ct. 956, 136 L.Ed.2d 843 (1997); Daly, 946 F.2d 1467; and Betesh v. United States, 400 F.Supp. 238 (D.D.C.1974)).

¶ 6 In the Reed case, Arnold Reed underwent a chest x-ray as part of a pre-employment physical examination, and the radiologist who read the film reported to the physician responsible for conducting the examination that the x-ray was abnormal. Id. at 434-35. Not only was that information not conveyed to Reed, but the examining physician told Reed that Reed was in good health. Id. In fact, Reed had Stage IIB Hodgkin's Disease, and he died approximately one year later. Id. A lawsuit was brought by Reed's widow and estate against the physician conducting the physical examination and the radiologist. Id.

¶ 7 With regard to the examining physician, the court in Reed adopted the following description of the duty owed by one who is retained by a third party:

[W]hen a person is referred to a physician for a pre-employment physical, a physician-patient relationship is created at least to the extent of the examination, and a duty to perform a professionally reasonable and competent examination exists. A professionally unreasonable examination that is detrimental to the examinee is not immunized from liability because a third-party authorized or paid for the exam. Included within the notion of a reasonable and competent examination is the need to "take reasonable steps to make information available timely to the examinee of any findings that pose an imminent danger to the examinee's physical or mental well being."

Id. at 442-43 (quoting Ranier v. Frieman, 294 N.J.Super. 182, 682 A.2d 1220, 1224 (App.Div.1996)(quoting Green, 910 F.2d at 296)). The court did, however, distinguish between the role of the primary physician and that of the physician to whom a referral was made for additional diagnostic purposes, such as the radiologist or a pathologist, to declare that the court did not intend to convey the principle that the latter category of physician has a duty "to convey the test results directly to the patient." Id. at 445 n. 1.

¶ 8 Whether a duty exists is an issue that involves balancing the parties' relationship, the nature of the risk and the public interest in the proposed solution. Id. at 443. (See also W. Page Keeton et al., PROSSER & KEETON ON THE LAW OF TORTS § 56 at 374 (5th ed.1984)). "What is crucial is that a relationship is created in which a physician is expected to exercise reasonable care commensurate with his expertise and training, both in conducting the examination and in communicating the results to the examinee." Id.

Concomitantly, the patient is entitled to rely on the physician to tell him of a potential serious illness if it is discovered. Any reasonable person would expect that and the duty to communicate with a patient who is found to be ill is non-delegable. When the doctor who ascertains the abnormality communicates it directly to the patient, he or she has the best chance of obtaining prompt remedial care and the best hope of avoiding falling through the cracks of a multi-party system.

Id. The court held that the physician owed Reed a duty of reasonable care because they had entered a relationship to the extent of the examination and the communication of its outcome. Id. at 445. It elaborated that Reed had reasonably relied on the physician's "superior knowledge to assess the state of his health. Subsumed in that reliance was an entirely reasonable belief that, if [the physician] had found a potentially life threatening abnormality, he would not have remained silent about it." Id.

¶ 9 Similarly, the plaintiff in Daly underwent a chest x-ray and tuberculosis test as part of a pre-employment examination. 946 F.2d at 1468. A radiologist discovered an abnormality of the lung but never informed Daly. Id. Four years later, however, Daly was diagnosed with sarcoidosis, a disabling disease for which early treatment may halt its progress. Id. at 1468-69. While the court refrained from drawing the "exact contours" of the physician's duty to disclose, it was persuaded "that, at a minimum, the radiologist should have notified Daly of the abnormality." Id. at 1470.

¶ 10 In Betesh, Betesh was not informed of a radiologist's report noting an abnormality in Betesh's chest x-ray. 400 F.Supp. at 241. Betesh later was diagnosed as having Hodgkin's Disease, and, while he had a form of the disease that can be successfully treated at an early stage, his disease had advanced to an incurable stage. Id. at 242. Although the court relied in part on particular federal regulations, id. at 243-45, it found the physician liable, regardless of any federal regulation, in accord with Maryland law. Id. at 245-47. The court stated that a physician is "under a duty to act carefully, not merely in the conduct of the examination but also in subsequent communications to the examinee," id. at 246, and held that Maryland law created "a duty [of a physician] to disclose what he had found and to warn the examinee of any finding that would indicate that the patient is in danger and should seek further medical evaluation and treatment." Id...