dissenting:
I respectfully dissent.
The key to this case on appeal is the meaning of the term “patient.” Although Dr. Hess, a licensed psychologist, is clearly a “provider of health care” under NRS 629.031, it is equally clear that Cleghorn’s relationship with Dr. Hess was not that of a “patient.” .
Appellants place the issue in proper perspective, but fail to recognize it, in citing the definition of “patient” found in Webster’s Third New International Dictionary of the English Language — Unabridged (1968) as “a client for medical services (as of a physician or dentist).” Cleghorn was neither a “client” nor a seeker of “medical services” in his relationship with Dr. Hess. To the contrary, Wackenhut was Dr. Hess’ client, and the examination of Cleghorn by Dr. Hess constituted a service required by and performed for Wackenhut. The purpose of the examination was to determine the suitability of Cleghorn to continue his employment as a security inspector for Wackenhut. To the extent that the examination involved “medical services,” it was purely incidental to the purpose of employment qualification.
Appellants’ reference to the definition of a “patient” as “a person seeking medical services for examination or treatment” is also insupportive of their position. See 46 Am. Jur. Proof of Facts 2d, 395 (1986). Cleghorn did not report to Dr. Hess seeking medical services for either examination or treatment. He was directed to report to Dr. Hess for psychological testing requisite for continued employment with Wackenhut. In no sense did Cleghorn seek any type of medical services from Dr. Hess in the *551sense that a patient seeks out the services of a physician for diagnostic examination, care, or treatment.
The case of Green v. Walker, 910 F.2d 291 (5th Cir. 1990), cited by appellants is also unavailing as support for their position. Green stands only for the proposition that if an employer requires an employee to be examined physically or mentally as a condition to obtaining or maintaining employment, the examining health care provider would have an obligation to perform the exam with due care and to provide the examinee with any findings that would signal imminent danger to the physical or mental well-being of the examinee. The Green holding is a far cry from a determination that the examined employee is a “patient” of the examining health care provider. Rather, the ruling constitutes a sound affirmation of the concept of duty under a tort law analysis. At no point did the Green court declare the examinee a “patient” entitled to the report of the examination except to the extent previously stated.
More cogently to the point at issue is the case of Ervin v. Am. Guardian Life Assur., 545 A.2d 354 (Pa.Super.Ct. 1987), appeal denied, 562 A.2d 826 (Pa. 1989), where the court ruled that no physician-patient relationship results where a physician is employed to examine but not diagnose or treat an applicant for a life insurance policy. See also, Hoesl v. United States, 451 F.Supp. 1170, 1176 (N.D.Cal. 1978), aff’d, 629 F.2d 586 (9th Cir. 1980) (“[a]n examining physician is a doctor who does not undertake either by himself or in connection with others to advise or treat the people whom he examines”); Keene v. Wiggins, 138 Cal.Rptr. 3 (Cal.Ct.App. 1977) (in medical malpractice cases, no doctor-patient relationship exists between an employee and the doctor who examines the employee for the benefit of the employer).
The instant case is analogous to Ervin in that Cleghorn was examined at the direction of his employer, Wackenhut, in order to maintain his employment. In Ervin, the examination was required by the insurance company in order to qualify Ervin for coverage. Both cases involve an examination performed by health care providers at the request of parties other than the examinee for commercial purposes only incidently related to the health of the person examined. In neither case was the examinee, in any sense, a “patient” of the examiner. In neither case was the examiner’s fee paid by or on behalf of the examinee. In neither case was the examination performed in furtherance of a primary interest in the mental or physical health of the examinee.
The majority also turns to the definition of “patient” in Nevada’s evidence code as a measure of support for the conclusion that Cleghorn enjoyed that status with Dr. Hess. I suggest *552that a contrary conclusion is warranted. NRS 49.215(3) defines “patient” for purposes of the doctor-patient privilege as “a person who consults or is examined or interviewed by a doctor for purposes of diagnosis or treatment.” Cleghorn did not report to Dr. Hess for either diagnosis or treatment. The sole purpose of the examination conducted by Dr. Hess was to determine Cleghom’s suitability for employment based upon his test results. If the test results revealed a condition of unsuitability, Dr. Hess was not called upon to diagnose or treat the underlying causes of the condition. Finally, the privilege itself excludes Cleghorn from the definition of a “patient” in providing that “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among himself, his doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient’s family.” NRS 49.225. Clearly, Cleghorn had no right to prevent the disclosure of the test results to Wackenhut who had instructed Dr. Hess to perform the examination in the first place.
Moreover, I disagree with the majority’s conclusion that the results of Cleghorn’s examination by Dr. Hess constitute “health care records” as defined in NRS 629.021.1 The majority’s position is undermined by the mere fact that the results of an employment suitability test does not reflect any aspect of “care.” A health care record contains information generated by a health care provider regarding the medical history, examinations, diagnoses, and treatment of his or her “patient.” Indeed, the entirety of Chapter 629 of the Nevada Revised Statutes is constituted under the title of “Healing Arts Generally.” Nothing pertaining to Cleghorn’s examination by Dr. Hess related to healing. Dr. Hess sought only to determine Cleghorn’s mental status or suitability for employment as required by Wackenhut.
Finally, the majority voices the concern that employers may gather “secret” information about their employees and use it against them with impunity. I suggest that if, in situations other than at will employment where termination may occur for any reason or no reason, an employee has reason to believe that test results are concocted or concealed in order to create a pretense for termination, contract or tort law will provide an effective avenue of relief for the aggrieved employee. I therefore question the propriety of this court placing an expansive gloss on what *553appears to be a clear statute in order to meet a contingency that may or may not occur and which could be resolved according to the law of torts or contracts in any event. If the Legislature determines that employers who conduct pre-employment or employment retention testing should be required to give the results to the examinees, a statute may be enacted that would effectuate such a policy.
For the reasons expressed above, I respectfully dissent.
NRS 629.021 provides as follows: ‘“Health care records’ means any written reports, notes, orders, photographs, X-rays or other written record received or produced by a provider of health care, or any person employed by him, which contains information relating to the medical history, examination, diagnosis or treatment of the patient.”