concurring fully and specially.
I write separately as to the issue addressed in Division 1 (b) to point out that several other jurisdictions who have considered this issue have imposed a limited duty on physicians performing occupational medical screenings even in the absence of a traditional physician-patient relationship. As recently analyzed by the Arizona Supreme Court:
Many courts treat the existence of a formal doctor-patient relationship as merely one factor to consider in analyzing whether a duty should be imposed____Other courts examine the extent of the relationship and the type[s] of tests conducted by the doctor to determine the extent of the duty, or what we would call the standard of care. E.g., Cleghorn v. Hess, 109 Nev. 544, 853 P2d 1260,1263-1264 (Nev. 1993). To determine whether a duty exists, some courts consider such factors as whether the doctor was in a unique position to prevent harm, the burden of preventing harm, whether the plaintiff relied upon the doctor’s diagnosis or interpretation, the closeness of the connection between the defendant’s conduct and the injury suffered, the degree of certainty that the plaintiff has suffered or will suffer harm, the skill or special reputation of the actors, and public policy. E.g., Parsons v. Crown Disposal Co., 15 Cal. 4th 456, 63 Cal. Rptr. 2d 291, 936 P2d 70, 80 (Cal. 1997). These are appropriate inquiries that illuminate the concerns that motivate tort liability.
Stanley v. McCarver, 92 P3d 849, 853 (Ariz. 2004).
*88Decided June 2, 2005 Reconsideration denied June 29, 2005. Pursley, Lowery & Meeks, Kevin B. Buice, Norah M. White, for appellants.The Arizona court is not alone in adopting this or a similar approach. See Betesh v. United States, 400 FSupp. 238, 245-247 (D.C. 1974) (finding duty existed under Maryland law for radiologist hired by employer to report abnormalities to the employee); Daly v. United States, 946 F2d 1467, 1468 (9th Cir. 1991) (finding duty existed under Washington law for doctor to report abnormal results obtained during pre-employment exam despite absence of doctor-patient relationship); Reed v. Bojarski, 764 A2d 433, 443 (N. J. 2001) (finding absence of traditional physician-patient relationship is simply one factor to consider in determining duty of examining doctor).
Although I favor the balanced approach expressed in these opinions, in light of our well-established precedent in this area, I fully concur in the majority opinion.
On Motion for Reconsideration.
In an opinion issued June 2, 2005, this Court reversed the trial court’s denial of the defendants’/appellants’ motion for summary judgment. The appellees, Donald and Mary Landers, filed a motion for reconsideration. Pursuant to Court of Appeals Rule 37 (e),
A reconsideration will be granted on motion of the requesting party, only when it appears that the Court overlooked a material fact in the record, a statute or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneously construed or misapplied a provision of law or a controlling authority.
The appellees’ entire argument in support of their motion consists of the following: “It appears that there is a basis for granting this Motion for Reconsideration pursuant to Rule 37 (e).” Because the appellees fail to make any attempt to state a basis for granting the motion under the applicable standard, we hereby determine the motion to be frivolous. Accordingly, we deny the motion for reconsideration and assess penalties in the amount of $500 against appellees’ counsel pursuant to Court of Appeals Rule 15 (b).
Motion for reconsideration denied.
Friedman & Martin, Stanley Ft. Friedman, Janna Martin, for appellees.