concurring in part and dissenting in part:
I concur with the majority’s disposition with regard to count III. As to count I, however, I respectfully dissent.
In general, a physician does not owe a duty to a nonpatient third party in regard to his or her treatment of a patient. Brewster v. RushPresbyterian-St. Luke’s Medical Center, 361 Ill. App. 3d 32, 36, 836 N.E.2d 635, 638 (2005). However, the instant case does not present a physician-patient relationship. Dr. Watters and Primary Care were not acting as treating physicians but, rather, were certifying that Atkinson was physically qualified to drive a commercial motor vehicle. Section 391.11 of Title 49 of the Code of Federal Regulations sets forth the general qualifications of drivers as follows:
“(a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in §391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.
(b) Except as provided in subpart G of this part, a person is qualified to drive a motor vehicle if he/she—
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(4) Is physically qualified to drive a commercial motor vehicle in accordance with subpart E — Physical Qualifications and Examinations of this part[.]” 49 C.F.R. §§391.11(a), (b)(4) (2005).
In order for a certificate of physical examination to be issued, a medical examiner is required to examine a prospective driver and record the results in accordance with several instructions, including in pertinent part the following: “Spine, musculoskeletal. Previous surgery, deformities, limitation of motion, and tenderness should be noted. Findings may indicate additional testing and evaluation should be conducted.” (Emphasis in original.) 49 C.F.R. §391.43(0 (2005).
This was a preemployment examination with the intended recipient consumer being a prospective employer, such as plaintiff. In the instant case, Dr. Watters’ examination report specifically noted that Atkinson had no previous spinal injury or disease, no chronic low back pain, and no previous surgery, deformities, limitation of motion, or tenderness in his spine or other musculoskeletal areas. According to the pleadings, which we are required to accept as true at this stage in the proceedings, Atkinson has “obvious scars” on his back from his previous back surgeries. Accordingly, Dr. Watters, upon examination, would have discovered that Atkinson misrepresented his history about no previous spinal injuries and no chronic low back pain. Plaintiff alleges that Dr. Watters is a partner, employee, and agent of Primary Care, thereby premising liability on a respondeat superior basis.
After careful consideration, I believe that the alleged injury was reasonably foreseeable. Dr. Watters was aware that the examination he was performing on Atkinson was to certify him as medically fit to operate a commercial motor vehicle. Dr. Watters knew that if he certified Atkinson as medically fit to perform the job, potential employers would rely on that certification. Conversely Dr. Watters was aware that if he refused to certify Atkinson as medically fit, potential employers would refuse to employ Atkinson on that basis.
In Renslow v. Mennonite Hospital, 67 Ill. 2d 348, 367 N.E.2d 1250 (1977), the Illinois Supreme Court allowed a nonpatient third party with no patient-hospital or patient-doctor relationship to maintain a cause of action against a hospital and doctor. In Renslow, a child not yet conceived at the time negligent acts were committed against its mother by a doctor and hospital employees was allowed to sue for that negligence directed against its mother. A wrong against one person may invade the protected rights of one who has a special relationship with the first party because the law recognizes a limited area of transferred negligence. Renslow, 67 Ill. 2d at 357, 367 N.E.2d at 1255.
This is not a situation in which the plaintiff is an unidentifiable third party. Dr. Watters was aware of the nature of this examination and knew that a potential employer would rely on the results of the examination in making a decision with regard to hiring or not hiring Atkinson. I, therefore, find the relationship between Dr. Watters, Primary Care, and plaintiff to be the type of relationship in which it is reasonable to impose a duty. The injury to plaintiff in hiring a prospective employee with undisclosed previous back problems is clear. If plaintiff had been made aware of Atkinson’s previous back problems, it might not have hired him and might not have become liable to Atkinson under the Act.
I disagree with Dr. Watters’ and Primary Care’s assertion that by finding they owed a duty to plaintiff, they would be required to guard plaintiff from every conceivable injury that Atkinson could incur during the course of his employment. However, hiring a driver with previous back problems increases the likelihood of another back injury to that driver. The medical examination was intended to disclose any previous back injuries, deformities, surgeries, or pain. This burden is not onerous. It requires a doctor to exercise due care when performing an examination on a prospective commercial truck driver.
After considering the circumstances here in which Atkinson allegedly injured his back while working for plaintiff, I would find that Dr. Watters and Primary Care owed a duty to plaintiff to exercise due care when performing the physical examination on Atkinson. Accordingly, I would find the trial court erred in granting the motion to dismiss count I on the basis that Dr. Watters and Primary Care owed no duty to plaintiff in regard to Atkinson’s medical examination.