Stanley v. McCarver

SUPREME COURT OF ARIZONA
En Banc

CHRISTINE STANLEY, an individual, ) Arizona Supreme Court
) No. CV-03-0099-PR
Plaintiff-Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 02-0328
ROBERT R. McCARVER, JR., M.D.; )
OSBORN, NELSON & CARR PORTABLE ) Maricopa County
X-RAY, INC., ) Superior Court
) No. CV 00-015923
Defendants-Appellees. )
__________________________________) O P I N I O N

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, III, Judge

REVERSED AND REMANDED

Opinion of the Court of Appeals, Division One
204 Ariz. 339, 63 P.3d 1076 (App. 2003)

AFFIRMED IN PART, VACATED IN PART

KAREN L. LUGOSI, P.C. Phoenix
by Karen L. Lugosi
Attorney for Plaintiff-Appellant

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

B E R C H, 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.

FACTUAL AND PROCEDURAL BACKGROUND1

¶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 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

1
Because this case was decided on summary judgment, we must
view the facts in the light most favorable to Ms. Stanley, the
non-moving party. Dickey v. City of Flagstaff, 205 Ariz. 1, 2
n.2, 66 P.3d 44, 45 n.2 (2003) (citing Orme Sch. v. Reeves, 166
Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990)).

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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.

DISCUSSION

¶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.

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¶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-

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patient relationship); see also Felton v. Schaeffer, 279 Cal.

Rptr. 713 (App. 1991); Peace v. Weisman, 368 S.E.2d 319 (Ga. Ct.

App. 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, 44 N.E. 992 (Mass. 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, 679 N.W.2d 311, 314-15 (Mich. 2004);

Reed v. Bojarski, 764 A.2d 433, 442-43 (N.J. 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” 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, 551 P.2d 334, 340

(Cal. 1976) (imposing duty on mental health workers to warn of

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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

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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

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(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, 532 N.E.2d 170, 173-75 (Ohio Ct. App. 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 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

congnizant due to his peculiar knowledge of his

2
Other cases suggest such a result as well. E.g., Union
Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229 (6th Cir.
1956) (interpreting Tennessee law, finding duty by employer);
Dornak v. Lafayette Gen. Hosp., 399 So. 2d 168 (La. 1981)
(interpreting civil code); Dyer, 679 N.W.2d at 317 (finding a
limited doctor-patient relationship in the context of an
independent medical examination for litigation purposes);
Cleghorn v. Hess, 853 P.2d 1260 (Nev. 1993) (concluding that
required pre-employment examination creates a relationship
between the doctor and prospective employee, at least to the
extent of the tests conducted); Baer v. Bd. of Regents, 884 P.2d
841 (N.M. Ct. App. 1994) (remanding for determination whether
doctor who found abnormality in course of periodic physical
fulfilled his duty to the examinee by referring the patient to
his regular physician).

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specialization.’” Green, 910 F.2d at 296 (quoting Am. Mfrs.

Mut. Ins. Co. v. United Gas Corp., 159 So. 2d 592, 595 (La. Ct.

App. 1964)).

¶12 We find the reasoning in these cases compelling. 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. E.g., Meena, 603 So. 2d at

870. Such an interpretation comports with Arizona courts’ focus

on the sufficiency of the relationship as a basis for imposing a

duty. E.g., Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

Other courts examine the extent of the relationship and the type

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, 853 P.2d 1260, 1263-64 (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., 936 P.2d 70, 80 (Cal. 1997). These are

appropriate inquiries that illuminate the concerns that motivate

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tort liability.

¶13 In the case before us, although there was no

traditional doctor-patient relationship between the parties, Dr.

McCarver did agree, for consideration, to interpret Ms.

Stanley’s confidential medical record, her x-ray, and accurately

report the results to ONC. By doing so, he undertook a

professional obligation with respect to Ms. Stanley’s physical

well being. Having placed himself in such a position, his

special skill and training made him aware of abnormalities in

the x-ray that one lacking such training could not observe. As

a result of his undertaking, Dr. McCarver recognized the

existence of abnormalities on the x-ray that may have evidenced

an unreasonable risk of harm to Ms. Stanley of which she was

unaware. Despite the lack of a traditional doctor-patient

relationship, Dr. McCarver should have anticipated that Ms.

Stanley would want to know of the potentially life-threatening

condition and that not knowing about it could cause her to forgo

timely treatment, and he should have acted with reasonable care

in light of that knowledge.3

¶14 By virtue of his undertaking to review Ms. Stanley’s

x-ray, Dr. McCarver placed himself in a unique position to

3
Because MCC had a policy of advising employee applicants
within seventy-two hours of MCC’s “receipt of the final
results,” Ms. Stanley might reasonably have assumed that, having
heard nothing, no threat to her health was revealed by the x-
ray.

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prevent future harm to Ms. Stanley. In such a circumstance, an

examinee reasonably expects the physician to sound the alarm if

any serious abnormality is discovered. Although our dissenting

colleague notes that courts in many jurisdictions have not

imposed a duty in such situations, see infra ¶ 30, the trend now

favors imposing a duty and we can envision no public benefit in

encouraging a doctor who has specific individualized knowledge

of an examinee’s serious abnormalities to not disclose such

information. We conclude that public policy is better served by

imposing a duty in such circumstances to help prevent future

harm, even in the absence of a traditional doctor-patient

relationship.

¶15 The imposition of a duty in these circumstances also

comports with the Restatement (Second) of Torts § 324A (1965),

which Arizona courts have applied in other contexts. See

Tollenaar v. Chino Valley Sch. Dist., 190 Ariz. 179, 180, 945

P.2d 1310, 1311 (App. 1997); Thompson v. Sun City Cmty. Hosp.,

141 Ariz. 597, 608, 688 P.2d 605, 616 (1984) (applying related

Restatement § 323). Section 324A suggests imposing a duty on

one “who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person.” It provides

that a person “is subject to liability to the third person . . .

if (a) his failure to exercise reasonable care increases the

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risk of . . . harm, or . . . (c) the harm is suffered because of

reliance of . . . the third person upon the undertaking.”

Restatement, supra, § 324A; see also Dan B. Dobbs, THE LAW OF

TORTS §§ 320-21, at 864-73 (2001 & Supp. 2003). Dr. McCarver

appears to have undertaken, for consideration, to read Ms.

Stanley’s x-ray and to render an opinion on whether the x-ray

revealed the presence of tuberculosis. Because this case was

decided virtually at the pleading stage,4 Ms. Stanley has not had

the opportunity to show whether Dr. McCarver’s actions increased

the risk of harm to her beyond that which existed in the absence

of his undertaking or whether she relied on his undertaking.

She should have her day in court to make that showing.

¶16 Having concluded that a duty exists, we should say

what the duty is. As Prosser notes, in negligence cases “the

duty is always the same[:] to conform to the legal standard of

reasonable conduct in the light of the apparent risk.” Prosser,

supra ¶ 10, § 53 at 324. The standard of care imposes on those

with special skills or training, however, the higher obligation

to act in light of that skill, training, or knowledge,5 and may

4
Although the case was decided on summary judgment, the only
issue presented in that motion was whether Dr. McCarver owed any
duty to Ms. Stanley.
5
This standard is supported by Arizona Revised Statutes
section 12-563(1) (2003), which provides that, to establish a
claim of medical malpractice, a plaintiff must prove that

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be breached either by acts of communication (misfeasance) or

omission (nonfeasance). Dr. McCarver therefore assumed a duty

to conform to the legal standard of care for one with his skill,

training, and knowledge. As noted in ¶¶ 17 and 19, what is

necessary to satisfy the standard will depend upon the facts of

each case.

¶17 While we agree with the court of appeals that Dr.

McCarver owed a duty of reasonable care to Ms. Stanley, we

depart company with respect to that court’s definition of the

duty. Relying heavily on the American Medical Association’s

Ethical Opinion E-10.03 (June 1999), section V of the Standards

of the American College of Radiology (2001) (regarding

communication of diagnoses), and section VII(B)(2)(b) of the

American College of Radiology’s Standards for the Performance of

Screening Mammography (2000), the court of appeals held that a

radiologist had a duty to report abnormalities directly to the

patient if “there is no referring physician or the referring

physician is unavailable.” Stanley, 204 Ariz. at 345, ¶ 20, 63

P.3d at 1082. We decline to find a duty to report directly to

the patient based upon the medical profession’s ethical

standards because such a notion conflates the existence of a

[t]he health care provider failed to exercise that
degree of care, skill and learning expected of a
reasonable, prudent health care provider in the
profession or class to which he belongs within the
state acting in the same or similar circumstances.

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duty with the standard of care.6 See Markowitz, 146 Ariz. at

356-57, 706 P.2d at 368-69. We do agree with the court of

appeals that the duty imposed is to act as a reasonably prudent

health care provider in the circumstances. Stanley, 204 Ariz.

at 345, ¶ 21, 63 P.3d at 1082. But whether this duty requires

direct communication with the subject of the x-ray regarding any

abnormalities discovered may depend upon factors such as whether

there is a treating or referring physician involved in the

transaction, whether the radiologist has means to identify and

locate the patient, the scope of — including any contractual

limitations on — the radiologist’s undertaking, and other

factors that may be present in a particular case.

¶18 In this case, Ms. Stanley has alleged two breaches of

Dr. McCarver’s duties. First, she alleges that he failed to

properly interpret the x-ray in question. Yet Dr. McCarver and

6
We have similarly declined to use the court’s own ethical
standards as a basis upon which to impose legal malpractice
liability. Ariz. R. Sup. Ct. 42, R. Prof. Resp., Preamble,
Scope ¶ 20 (noting that rules of professional responsibility
“are not designed to be a basis for civil liability”). While
rules of professional conduct may provide evidence of how a
professional would act, they do not create a duty or establish a
standard of care as a matter of law.
The dissent analogizes to a lawyer’s ethical duty to report
intended criminal conduct that is likely to result in serious
bodily harm or death to support the imposition of a duty in
Tarasoff. See dissent ¶ 32 (citing Ariz. R. Sup. Ct. 42, ER
1.6). We note, in response, that implying a duty based on the
analogous ethical rules for radiologists suggests the imposition
of the duty in this case as well. We continue to believe,
however, that while such rules may illuminate the standard of
care, they do not serve as a basis on which to impose a duty.

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ONC agree, and Ms. Stanley has not disputed, that Dr. McCarver

was an independent contractor, hired only to do a pre-employment

screening to rule out the presence of tuberculosis. The record

is devoid of evidence that he undertook to diagnose any other

conditions that might be ascertainable from the x-ray or had a

doctor-patient relationship with Ms. Stanley that would require

him to do so. Ms. Stanley agrees that Dr. McCarver observed and

reported other abnormalities, such as a “small nodule overlying

the right sixth rib” and a “patchy consolidated parenchymal

pattern” on the right rib that might indicate the presence of

pneumonia scarring or present pneumonia and suggested the need

for serial x-rays to determine “stability.” Ms. Stanley

complains, however, that Dr. McCarver did not rule out

tuberculosis. We fail to see, however, even if that were true,

how that failure harms Ms. Stanley, for it is undisputed that

she does not have tuberculosis. Therefore, even had Dr.

McCarver read the x-ray flawlessly, he would not have observed

or reported the presence of tuberculosis.

¶19 Second, she alleges that he failed to report the

results of the x-ray directly to her. But whether Dr. McCarver

acted reasonably by advising ONC of his interpretation of the x-

ray is a matter of the standard of care, to be resolved by the

trier of fact on remand. The jurors may consider whether MCC’s

failure to follow its own policy requiring it to advise Ms.

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Stanley of the abnormal x-ray comparatively reduces Dr.

McCarver’s negligence, if any. And they may consider whether,

by notifying ONC, Dr. McCarver discharged his duty by providing

notice of his findings reasonably calculated to result in notice

to Ms. Stanley. See, e.g., Meinze, 532 N.E.2d at 172

(concluding that a duty to inform was fulfilled when medical

reports were sent to patient’s attorney). All we hold today is

that a radiologist who interprets a pre-employment x-ray may not

necessarily escape liability simply because the subject of the

x-ray was not a “patient” in the traditional sense. The

discharge of the radiologist’s duty requires the doctor to take

reasonable steps appropriate under the circumstances.

¶20 Dr. McCarver urges that imposing a duty on

radiologists who perform pre-employment interpretations of x-

rays will “chill” doctors from doing pre-employment exams and

open the floodgates of litigation. We are not persuaded. We

suspect, based upon the ethical standards governing

radiologists, that most radiologists do in fact communicate with

some responsible party when a serious abnormality is discovered.

The paucity of case law on this subject further indicates that

this is true. It also suggests that the threatened flood of

litigation might instead be a trickle. Cf. Union Carbide, 237

F.2d at 232-33 (imposing related duty, but apparently not

opening floodgates of litigation). Finally, we note that

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doctors may deal with this issue as a matter of contract. They

may, for example, require x-ray subjects to consent to having

the results reported only to the employers.

¶21 In dissent, our colleague expresses concern that the

duty the majority recognizes may “subject the doctor to

liability in tort for a medical condition that was not caused by

negligence of the doctor.” See infra ¶ 24. Ms. Stanley sues,

however, not for her cancer, but for the lost opportunity to

treat it. She may not be able to establish that the time

between the reading of the x-ray and the discovery of the cancer

would have improved her chances of recovery, if indeed she can

establish a breach of duty. We do not opine that Dr. McCarver

has breached any duty. Rather, that issue is remanded to the

jury for determination. We hold only that a doctor who, for

consideration, undertakes to read x-rays, on which he observes

serious abnormalities, must act reasonably in reading the x-rays

and reporting the results.

¶22 We do not impose the duty, as suggested by the

dissent, solely because the doctor is in a position to prevent

future harm. Indeed, we recognize that prevention of harm alone

will not support the imposition of a duty. See Prosser, supra ¶

10, § 56 at 340-43 (citations omitted). The duty emanates from

the panoply of social concerns that generally inform tort law.

See supra ¶¶ 9-12. We simply conclude that the absence of a

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formal doctor-patient relationship does not necessarily insulate

a doctor from liability.7

CONCLUSION

¶23 We conclude that the absence of a formal doctor-

patient relationship does not necessarily preclude the

imposition of a duty of care. We affirm that portion of the

opinion of the court of appeals imposing a duty, but vacate the

remainder of the opinion. We reverse the decision of the trial

court and remand the case for further proceedings.

__________________________________
Rebecca White Berch, Justice

CONCURRING:

_________________________________________
Ruth V. McGregor, Vice Chief Justice

_________________________________________
Michael D. Ryan, Justice

_________________________________________
Andrew D. Hurwitz, Justice

7
We do not imagine, for example, that if Dr. McCarver
falsely told the employer that Ms. Stanley had tuberculosis when
she did not, thus denying her employment, or put her
confidential medical information on the internet that the
absence of a formal doctor-patient relationship would preclude a
lawsuit.

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J O N E S, Chief Justice, respectfully dissenting

¶24 Dr. McCarver did nothing more than evaluate Ms.

Stanley’s pre-employment x-ray at the request of a prospective

employer relative to an informed hiring decision. He did not

see Ms. Stanley and was never approached by her for medical

treatment. No physician-patient relationship existed, nor was

there any particular relationship between the two.

Nevertheless, the majority holds the doctor undertook a duty of

care toward Ms. Stanley, the breach of which could subject the

doctor to liability in tort for a medical condition that was not

caused by negligence of the doctor. No legal authority is cited

that would extend a duty of care in that circumstance. For

reasons explained below, I would hold that imposition of a duty

on the doctor in these circumstances constitutes an extension of

the concept of duty that is unjustified as a matter of law.

¶25 In holding that Dr. McCarver should take steps

reasonably calculated to apprise Ms. Stanley of her condition,

the majority reasons that although no traditional physician-

patient relationship existed between the parties, the doctor

“placed himself in a unique position to prevent future harm to

Ms. Stanley” and that “[i]n such a circumstance, an examinee

reasonably expects the physician to sound the alarm if any

potentially serious abnormality is discovered.” Op. ¶ 14. I

disagree because I cannot agree that the doctor was uniquely

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placed to prevent future harm. Moreover, the personal

expectations of an injured party do not involve legal

determinations, but are factual matters directly related to, and

thus part of, the standard of care determination to be made by

the jury as the trier of fact. This principle is bolstered by

the notion that expectations vary enormously, person to person,

circumstance to circumstance, and thus must be found reasonable

in their application, case by case. In contrast, duty can exist

only as a matter of law. Thus, unless the duty to be imposed on

a defendant can be supported by a legitimate legal source, the

personal expectations of an injured plaintiff become legally

irrelevant.

¶26 The majority struggles to identify a duty source,

referring to such notions as the plaintiff’s reliance on the

doctor for diagnosis, the relationship between the defendant’s

conduct and the injury sustained, the degree of certainty that

the plaintiff will suffer harm, the skill or reputation of the

doctor, the defendant being positioned to prevent harm, or

public policy. Op. ¶ 12. In my view of the record before us,

the remoteness of any connection between Ms. Stanley’s general

health and Dr. McCarver’s narrow undertaking as an independent

contractor to read a tuberculosis screening x-ray for employment

purposes is much too attenuated to bring the case within any

possible source of duty mentioned by the majority.

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¶27 The majority cites Diggs v. Arizona Cardiologists,

Ltd., 198 Ariz. 198, 8 P.3d 386 (App. 2001). There, the court

noted that the doctor, a cardiologist in the hospital emergency

room at the time, was in the “unique position to prevent future

harm to Mrs. Diggs.” Id. at 202, ¶ 20, 8 P.3d at 389. Still,

the basis on which the doctor’s duty was found to exist was not

his ability to prevent future harm, but rather, the foreseeable

reliance on the doctor’s medical opinion that resulted in Mrs.

Diggs’ release from the emergency room. Id. ¶ 22. Diggs simply

stands for the logical proposition that an emergency room doctor

who gives a medical opinion as the basis for the decision to

release the patient or continue the treatment has assumed a duty

of care to that patient.

¶28 While the Diggs rationale might be applied in other

cases asserting medical malpractice, I would find it

inapplicable here. Because Ms. Stanley’s x-ray was to be used

solely to determine employability rather than continued

treatment, Dr. McCarver could not have anticipated patient

reliance as a basis for future medical treatment in the way that

Mrs. Diggs relied on the emergency room doctor’s assessment of

her eligibility for release from the hospital.

¶29 A finding of duty in the field of negligence, must

rest on solid legal ground. Thus, we should not rely, in the

absence of a particular relationship, on a concept as undefined

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as “a panoply of social concerns,” Op. ¶ 22, from which to draw

legal notions of duty. Otherwise, endless circumstances might

be imagined in which duty is found between persons without a

relationship, unconnected in any meaningful way. Admittedly,

numerous examples might arise in which a “moral” obligation may

manifest itself, but these do not create a “legal” duty offering

potential plaintiffs an opportunity to sue in tort.

¶30 I find no other jurisdiction that has extended the

concept of duty to include a person so remotely connected to the

plaintiff as is Dr. McCarver in the case at bar. Nevertheless,

the majority uses language from cases that do not directly

support the proposition Ms. Stanley advances to fashion the rule

it adopts today.

¶31 Thus, today’s opinion cites cases supporting the

notion that a preexisting relationship between plaintiff and

defendant need not exist if public policy can mandate the

imposition of a duty. See Lombardo, 199 Ariz. at 99-100, 14

P.3d at 290-91; see also Tarasoff v. Bd. of Regents, 551 P.2d

334 (Cal. 1976). I disagree with that general proposition, but

even assuming public policy, by itself, could give rise to a

legal duty, the policy alleged in the instant case is not

compelling. For example, in Lombardo, this court held that a

buyer’s real estate agent was obliged to disclose to the seller

facts critical to the buyer’s ability to perform the purchase

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agreement. Lombardo, 199 Ariz. at 100, ¶ 13, 14 P.3d at 291.

But we noted in that case, because the buyer owed the duty,

agency principles dictated that her agent had the same duty.

Id.; see also Restatement (Second) of Agency § 348 cmt. e (1958)

(“[I]f the agent knows that the principal does not intend to

perform the contract because of hopeless insolvency or other

reason, the making of a contract for him under such conditions

subjects the agent to liability.”). To have held otherwise

would allow a party to a contract, through an agent, to deal

unfairly with all other parties to a transaction. Lombardo, 199

Ariz. at 100, ¶ 14, 14 P.3d at 291. The imprudence in that

result is self-evident.

¶32 Similarly, the California Supreme Court in Tarasoff

held that a mental health expert whose patient intended to harm

a third person owed a duty of reasonable care to protect the

targeted victim. 551 P.2d at 340. The mental health expert was

privy to vital information and therefore knew his patient was

bent on taking the life of another. Policy reasons underlying

Tarasoff are akin to the Arizona Rules of Professional Conduct

which impose an ethical duty on lawyers to report intended

criminal conduct where serious bodily injury or death is at

stake. See Ariz. R. Sup. Ct. 42, ER 1.6(b). Again, recognizing

the immediacy of the intentional threat to life or person, it is

a simple matter to understand why sound policy imposes such a

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duty.

¶33 Arizona cases illustrate the need for this court to

allow the legislature to define the public policy of the state.

In Brannigan v. Raybuck, 136 Ariz. 513, 516-17, 667 P.2d 213,

216-17 (1983), and Ontiveros v. Borak, 136 Ariz. 500, 508, 511,

667 P.2d 200, 208, 211 (1983), the issue was whether a tavern

owner should be duty-bound to withhold intoxicants from a patron

to prevent the patron from later injuring third parties.

Brannigan, 136 Ariz. at 515-16, 667 P.2d at 215-16; Ontiveros,

136 Ariz. 508, 511, 667 P.2d 208, 211. Finding that such duty

indeed did exist, the court recognized that its rationale at

least in part turned on the existence of a statute

“constitut[ing] legislative recognition of the foreseeable

danger to both the patron and third parties, and an effort to

meet that danger by enactment of laws designed to regulate the

industry, [and] to protect third persons.” Brannigan, 136 Ariz.

at 517, 667 P.2d at 217 (emphasis added); see also Ontiveros,

136 Ariz. at 509, 667 P.2d at 209 (“Even if the existence of a

tavern owner’s duty to act with care when furnishing liquor to

patrons could not be found by application of common law

principle and authority, its existence could be postulated upon

the affirmative requirements of statute.”).

¶34 Conversely, while the legislature in the instant case

could have subjected Dr. McCarver to a duty similar to that

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imposed on tavern owners, it has not done so. Further, given

the immediacy of the threat of an intoxicated person causing

harm to third parties by driving drunk, the principle in favor

of a duty imposed on tavern owners is by no means difficult to

comprehend as a worthwhile extension of sound public policy. In

the instant case, we have no declaration of policy and I

perceive no similar threat of immediate harm to innocent third

persons brought about by the actions of a tortfeasor.

¶35 On this record, I find it impossible to identify an

adequate policy source to justify the imposition of a duty of

care on Dr. McCarver in favor of Ms. Stanley. We are dealing

with a pre-employment x-ray screening evaluation, nothing more.

There is no physician-patient or other special relationship

between Ms. Stanley and Dr. McCarver. Indeed, there was no

indication in the record that Ms. Stanley could identify the

doctor who would perform the evaluation. Ms. Stanley had no

contact with the doctor. Even in Reed (cited by the majority),

the case perhaps most supportive of the majority view, where the

Supreme Court of New Jersey found that a doctor performing a

pre-employment screening owed a duty to a prospective employee,

direct and personal contact between the prospective employee and

the doctor in fact took place.8

8
It is also noteworthy that in Reed, the original lawsuit
named two doctors – one who conducted Reed’s physical, and a

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¶36 I believe, as Dr. McCarver argues and as the vast

majority of courts would conclude, that a duty of care should

not be imposed on an evaluating doctor where treatment is not

involved and where there is no physician-patient or other

particular relationship. See, e.g., Ramirez v. Carreras, 10

S.W.3d 757, 761 (Tex. App. 2000) (physician examined employee to

determine fitness to return to work following an injury; held,

“when a physician examines a person for the benefit of a third

party and no physician-patient relationship exists, the only

duty owed by the physician is the duty not to injure the

examinee”); Ney v. Axelrod, 723 A.2d 719, 721, ¶ 8 (Pa. Super.

1999) (“Where a third party has sponsored a medical examination

of a person and the person later alleges negligence on the part

of the physician who performed the examination, that person

cannot succeed on a negligence cause of action.”) (citation

omitted); Peace v. Weisman, 368 S.E.2d 319, 320 (Ga. App. 1988)

(finding no liability, in absence of a physician-patient

relationship, where doctor failed to diagnose lung cancer during

examination to determine patient’s eligibility for Social

Security benefits); Keene v. Wiggins, 69 Cal. App. 3d 308, 313

(Cal. Ct. App. 1977) (“[W]here no physician-patient relationship

radiologist who was responsible for reading Reed’s chest x-ray.
Reed, 764 A.2d at 435. The radiologist, who had no personal
contact with Reed, but merely reported the results of the x-ray
to a third party (the doctor performing the physical), was
dismissed from the lawsuit on summary judgment. Id.

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exists the doctor’s only duty is to conduct the examination in a

manner not to cause harm to the person being examined. The

physician acts as an agent of the person requesting the

examination and absent special circumstances, his duty to

observe good standards of professional skill in reporting the

results of the examination runs only to the person employing

him.”) (citation omitted). Each of these cases indicates with

ample clarity the parameters of duty on the facts of the case

before us.

¶37 Finally, I believe that the Restatement (Second) of

Torts § 324A (1965), cited by the majority, is inapplicable in

the instant case. That section applies to a person who

undertakes to render services to another, “which he should

recognize as necessary for the protection of a third person.”

Id. Dr. McCarver undertook to read Ms. Stanley’s x-ray solely

to inform a prospective employer of Ms. Stanley’s employability.

Nothing in the record suggests the doctor was duty bound to

“recognize” this tuberculosis screening “as necessary” for Ms.

Stanley’s protection.

¶38 For the foregoing reasons, I would vacate the opinion

of the court of appeals and reinstate the trial court’s grant of

summary judgment in favor of Dr. McCarver.

__________________________________
Charles E. Jones, Chief Justice

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