Webb v. T.D., No. 97-255

• Docket Nº: No. 97-255
• Citation: 951 P.2d 1008, 54 St.Rep. 1502, 287 Mont. 68
• Case Date: November 13, 1997
• Court: United States State Supreme Court of Montana

Page 1008

951 P.2d 1008 Diana L. WEBB, Plaintiff and Appellant,
v.
T.D., D.C.; R.K.S., M.D.; and C.H.A., M.D., Defendants and
Respondents. No. 97-255. Supreme Court of Montana. Heard Nov. 13, 1997.
Submitted Nov. 20, 1997.
Decided Dec. 30, 1997.
Rehearing Denied Jan. 30, 1998.

Page 1009

John M. Morrison (argued), Meloy & Morrison, Helena, for Plaintiff and Appellant.

Richard F. Cebull (argued) and Lisa A. Rodeghiero, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, for Defendant and Respondent R.K.S., M.D.

TRIEWEILER, Justice.

The plaintiff, Diana L. Webb, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County in which she alleged that she was injured as a result of a negligent orthopedic examination performed by Robert K. Snider, M.D. Dr. Snider had examined her at the request of her employer's workers' compensation insurance carrier. The District Court granted summary judgment to Dr. Snider on the basis that he owed claimant no duty because he had no physician-patient relationship with her. Webb appeals from that order and judgment. We reverse the judgment of the District Court.

The issue on appeal is whether a physician who performs a medical examination of an individual at the request of a third party has a duty of care to the examinee and, if so, what is the scope of that duty.

FACTUAL BACKGROUND

The following facts were before the District Court by deposition or affidavit. Because Webb's claim was resolved by summary judgment, we set forth only those facts most favorable to her claim.

Diana Webb suffered a work-related injury to her lower back in 1986. From April through August of that year, she received treatment on one occasion from a physical therapist and periodically from a chiropractor for pain relief. The only medical doctor

Page 1010

who examined her back was Robert K. Snider, M.D., an orthopedic surgeon, to whom she was referred by the State Compensation Insurance Fund. She saw Dr. Snider on October 7, 1986. He examined her and had her undergo a CAT scan of her back to help determine whether she had herniated an intervertebral disc.

Following Dr. Snider's examination and review of the CAT scan film, he wrote her the following letter on October 8, 1986:

Mrs. Edward Webb

Box 45

Belfry, MT 59008

Dear Diana:

I have reviewed the CAT scan, and it looks excellent. There is no evidence of a ruptured disc. I think that the problems that you are having are of a back sprain, and I don't feel that any surgical treatment will be necessary.

I indicated to workers' compensation that I feel that you can work, and I gave them an impairment rating of 2 percent applied to the whole person.

If you feel that you cannot return to your original job, then you need to discuss this with workers' compensation.

Sincerely,

Robert K. Snider, M.D.

According to Webb's testimony, because Dr. Snider was the only physician who had actually examined her, she relied on his advice and sought no further treatment for her back injury. She eventually returned to an occupation in which she performed heavy labor, severely herniated an intervertebral disc in her lower back, and has significant physical limitations as a result of that additional back injury.

Lawrence Guinney, M.D., is an orthopedic surgeon who, at Webb's request, reviewed her medical records, including those prepared by Dr. Snider, and the CAT scan done at Dr. Snider's request in 1986. It was his opinion that, contrary to the advice of Dr. Snider, that film showed an abnormal bulging disc at the level between Webb's fifth lumbar vertebra and first sacral vertebra and that Dr. Snider departed from the accepted standard of care for orthopedic surgeons by failing to note the abnormality. It was his opinion that as a result of Dr. Snider's misdiagnosis in 1986 and his failure to limit Webb's work-related activity, she suffered a herniation of the same disc in 1989 from which she suffered nerve root compression. Dr. Guinney concluded that the pain and dysesthesia, from which she now suffers, is a result of the prolonged nerve root compression caused by the 1989 herniation, and that if her condition had been accurately diagnosed in 1986 and her activities limited, it is more likely than not that the 1989 herniation and nerve root compression would not have occurred.

Dr. Snider moved for summary judgment. In support of his motion, he stated by affidavit that he saw Webb on one occasion on October 7, 1986, at the request of the State Compensation Insurance Fund to evaluate the nature and extent of her disease or injury and whether she could return to work. He stated that he was not retained to provide medical treatment and that he provided none. His findings were reported to the State Fund and the fee for his services was paid by the State Fund.

Dr. Snider contended that he was entitled to summary judgment for two reasons: (1) Webb's claim was barred by the statute of limitations; and (2) he owed Webb no duty because he had no doctor-patient relationship with her.

On February 3, 1995, the District Court granted summary judgment to Dr. Snider based on the statute of repose found at § 27-2-205, MCA. That order was appealed to this Court, which reversed the District Court on February 20, 1996, and remanded to the District Court for further proceedings. See Webb v. R.K.S., M.D. (1996), 275 Mont. 243, 912 P.2d 202. On January 21, 1997, the District Court granted a second motion for summary judgment in favor of Dr. Snider based on its conclusion that an independent medical exam (i.e., an exam performed at the request of a third party) does not give rise to a doctor-patient relationship, and that absent such a relationship an examining physician has no duty to the examinee to exercise reasonable care.

Page 1011

DISCUSSION

Does a physician who performs a medical examination of an individual at the request of a third party have a duty of care to the examinee and, if so, what is the scope of that duty?

This is an appeal from an order dismissing Webb's claim by summary judgment. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P. Our review of district court orders granting summary judgment is plenary. See State Farm v. Powell (1995), 274 Mont. 92, 95, 906 P.2d 198, 200.

The District Court granted Dr. Snider's motion for summary judgment based on its conclusion that he owed no duty to Webb because she was not his patient. The question of whether a legal duty is owed by one person to another, as well as the scope of any such duty, are questions of law. See Nautilus Ins. Co. v. First Nat'l Ins., Inc. (1992), 254 Mont. 296, 299, 837 P.2d 409, 411.

On appeal, Webb contends that doctors in Montana have a duty to exercise that degree of skill and learning ordinarily exercised by other doctors in the same speciality under like circumstances, and failure to do so is negligence. She cites our decision in Aasheim v. Humberger (1985), 215 Mont. 127, 695 P.2d 824. She contends that she submitted evidence that Dr. Snider negligently failed to diagnose her condition and that she suffered further damage as a result of his negligence and, therefore, that the District Court erred by dismissing her claim by summary judgment.

Dr. Snider responds that although he has a duty to exercise reasonable care, based on the standards of his profession, when examining, diagnosing, or treating a patient, that duty is based on, and limited to, the doctor-patient relationship. He contends that because he had no doctor-patient relationship with Webb, he owed her no duty as a matter of law. Although Dr. Snider concedes that there are no prior decisions to that effect in Montana, he relies on the following decisions from other jurisdictions: Hafner v. Beck (Ariz.App.1995), 185 Ariz. 389, 916 P.2d 1105; Keene v. Wiggins (1977) 69 Cal.App.3d 308, 138 Cal.Rptr. 3; Peace v. Weisman (1988), 186 Ga.App. 697, 368 S.E.2d 319; Rogers v. Horvath (1975), 65 Mich.App. 644, 237 N.W.2d 595; 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; Wilson v. Winsett (Tex.App.1992), 828 S.W.2d 231; Johnston v. Sibley (Tex.Civ.App.1977), 558...