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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