95-255
No. 97-255
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
DIANA L. WEBB,
Plaintiff and Appellant,
v.
T.D., D.C.; R.K.S., M.D.; and C.H.A., M.D.,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John M. Morrison (argued), Meloy & Morrison, Helena, Montana
For Respondent:
Richard F. Cebull (argued) and Lisa A. Rodeghiero; Brown,
Gerbase, Cebull, Fulton, Harman & Ross; Billings, Montana
(for R.K.S., M.D.)
Heard: November 13, 1997
Submitted: November 20, 1997
Decided: December 30, 1997
Filed:
__________________________________________
Clerk
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Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Diana L. Webb, filed a complaint in the District Court for the
Thirteenth Judicial District in Yellowstone County in which she alleged that she was
injured as a result of a negligent orthopedic examination performed by Robert K.
Snider,
M.D. Dr. Snider had examined her at the request of her employer's workers'
compensation insurance carrier. The District Court granted summary judgment to Dr.
Snider on the basis that he owed claimant no duty because he had no physician-patient
relationship with her. Webb appeals from that order and judgment. We reverse the
judgment of the District Court.
The issue on appeal is whether a physician who performs a medical examination
of an individual at the request of a third party has a duty of care to the examinee
and, if
so, what is the scope of that duty.
FACTUAL BACKGROUND
The following facts were before the District Court by deposition or affidavit.
Because Webb's claim was resolved by summary judgment, we set forth only those facts
most favorable to her claim.
Diana Webb suffered a work-related injury to her lower back in 1986. From April
through August of that year, she received treatment on one occasion from a physical
therapist and periodically from a chiropractor for pain relief. The only medical
doctor
who examined her back was Robert K. Snider, M.D., an orthopedic surgeon, to whom
she was referred by the State Compensation Insurance Fund. She saw Dr. Snider on
October 7, 1986. He examined her and had her undergo a CAT scan of her back to help
determine whether she had herniated an intervertebral disc.
Following Dr. Snider's examination and review of the CAT scan film, he wrote
her the following letter on October 8, 1986:
Mrs. Edward Webb
Box 45
Belfry, MT 59008
Dear Diana:
I have reviewed the CAT scan, and it looks excellent. There is no evidence
of a ruptured disc. I think that the problems that you are having are of a
back sprain, and I don't feel that any surgical treatment will be necessary.
I indicated to workers' compensation that I feel that you can work, and I
gave them an impairment rating of 2 percent applied to the whole person.
If you feel that you cannot return to your original job, then you need to
discuss this with workers' compensation.
Sincerely,
Robert K. Snider, M.D.
According to Webb's testimony, because Dr. Snider was the only physician who
had actually examined her, she relied on his advice and sought no further treatment
for
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her back injury. She eventually returned to an occupation in which she performed
heavy
labor, severely herniated an intervertebral disc in her lower back, and has
significant
physical limitations as a result of that additional back injury.
Lawrence Guinney, M.D., is an orthopedic surgeon who, at Webb's request,
reviewed her medical records, including those prepared by Dr. Snider, and the CAT
scan
done at Dr. Snider's request in 1986. It was his opinion that, contrary to the
advice of
Dr. Snider, that film showed an abnormal bulging disc at the level between Webb's
fifth
lumbar vertebra and first sacral vertebra and that Dr. Snider departed from the
accepted
standard of care for orthopedic surgeons by failing to note the abnormality. It was
his
opinion that as a result of Dr. Snider's misdiagnosis in 1986 and his failure to
limit
Webb's work-related activity, she suffered a herniation of the same disc in 1989 from
which she suffered nerve root compression. Dr. Guinney concluded that the pain and
dysesthesia, from which she now suffers, is a result of the prolonged nerve root
compression caused by the 1989 herniation, and that if her condition had been
accurately
diagnosed in 1986 and her activities limited, it is more likely than not that the
1989
herniation and nerve root compression would not have occurred.
Dr. Snider moved for summary judgment. In support of his motion, he stated by
affidavit that he saw Webb on one occasion on October 7, 1986, at the request of the
State Compensation Insurance Fund to evaluate the nature and extent of her disease or
injury and whether she could return to work. He stated that he was not retained to
provide medical treatment and that he provided none. His findings were reported to
the
State Fund and the fee for his services was paid by the State Fund.
Dr. Snider contended that he was entitled to summary judgment for two reasons:
(1) Webb's claim was barred by the statute of limitations; and (2) he owed Webb no
duty
because he had no doctor-patient relationship with her.
On February 3, 1995, the District Court granted summary judgment to Dr. Snider
based on the statute of repose found at õ 27-2-205, MCA. That order was appealed to
this Court, which reversed the District Court on February 20, 1996, and remanded to
the
District Court for further proceedings. See Webb v. R.K.S., M.D. (1996), 275 Mont.
243, 912 P.2d 202. On January 21, 1997, the District Court granted a second motion
for summary judgment in favor of Dr. Snider based on its conclusion that an
independent
medical exam (i.e., an exam performed at the request of a third party) does not give
rise
to a doctor-patient relationship, and that absent such a relationship an examining
physician
has no duty to the examinee to exercise reasonable care.
DISCUSSION
Does a physician who performs a medical examination of an individual at the
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request of a third party have a duty of care to the examinee and, if so, what is the
scope
of that duty?
This is an appeal from an order dismissing Webb's claim by summary judgment.
Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. See Rule 56(c), M.R.
Civ.P.
Our review of district court orders granting summary judgment is plenary. See State
Farm v. Powell (1995), 274 Mont. 92, 95, 906 P.2d 198, 200.
The District Court granted Dr. Snider's motion for summary judgment based on
its conclusion that he owed no duty to Webb because she was not his patient. The
question of whether a legal duty is owed by one person to another, as well as the
scope
of any such duty, are questions of law. See Nautilus Ins. Co. v. First Nat'l Ins.,
Inc.
(1992), 254 Mont. 296, 299, 837 P.2d 409, 411.
On appeal, Webb contends that doctors in Montana have a duty to exercise that
degree of skill and learning ordinarily exercised by other doctors in the same
speciality
under like circumstances, and failure to do so is negligence. She cites our
decision in
Aasheim v. Humberger (1985), 215 Mont. 127, 695 P.2d 824. She contends that she
submitted evidence that Dr. Snider negligently failed to diagnose her condition and
that
she suffered further damage as a result of his negligence and, therefore, that the
District
Court erred by dismissing her claim by summary judgment.
Dr. Snider responds that although he has a duty to exercise reasonable care,
based
on the standards of his profession, when examining, diagnosing, or treating a
patient, that
duty is based on, and limited to, the doctor-patient relationship. He contends that
because
he had no doctor-patient relationship with Webb, he owed her no duty as a matter of
law.
Although Dr. Snider concedes that there are no prior decisions to that effect in
Montana,
he relies on the following decisions from other jurisdictions: Hafner v. Beck (Ariz.
App.
1995), 916 P.2d 1105; Keene v. Wiggins (Cal. Ct. App. 1977) 138 Cal. Rptr. 3; Peace
v. Weisman (Ga. App. 1988), 368 S.E.2d 319; Rogers v. Horvath (Mich. 1975), 237
N.W.2d 595; Henkemeyer v. Boxall (Minn. Ct. App. 1991), 465 N.W.2d 437; LoDico
v. Caputi (N.Y. App. Div. 1987) 517 N.Y.S.2d 640; Promubol v. Hackett (Pa. Super.
1996), 686 A.2d 417; Tomko v. Marks (Pa. App. 1992), 602 A.2d 890; Craddock v.
Gross (Pa. Super. 1986), 504 A.2d 1300; Wilson v. Winsett (Tex. App. 1992), 828
S.W.2d 231; Johnston v. Sibley (Tex. Civ. App. 1977), 558 S.W.2d 135. The District
Court agreed, and on that basis, granted Dr. Snider's motion for summary judgment.
Webb replies that this case is distinguishable from the authorities cited by Dr.
Snider and relied on by the District Court because in this case Dr. Snider
undertook to
advise Webb regarding her condition, and thereby, assumed a duty to her to exercise
reasonable care. She contends that the authorities cited by Dr. Snider and relied
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on by
the District Court are inapplicable to the facts in this case because in none of
those cases
was advice directly provided by the examining physician to the person who had been
examined. Webb contends that the more persuasive authorities are the following: Daly
v. United States (9th Cir. 1991), 946 F.2d 1467; Green v. Walker (5th Cir. 1990), 910
F.2d 291; Betesh v. United States (1974), 400 F. Supp. 238; Hoover v. Williamson (Md.
1964), 203 A.2d 861; Cleghorn v. Hess (Nev. 1993), 853 P.2d 1260; Edwards v. Lamb
(N.H. 1899), 45 A. 480; Baer v. Regents of Univ. of California (N.M. App. 1994), 844
P.2d 841; Ferguson v. Wolkin (N.Y. 1986), 499 N.Y.S.2d 356; Twitchell v. MacKay
(N.Y. App. Div. 1980), 434 N.Y.S.2d 516; Armstrong v. Morgan (Tex. App. 1977), 545
S.W.2d 45.
We agree that the authorities cited by Dr. Snider and relied on by the District
Court are not applicable to the facts in this case. All of them involve independent
medical examinations at the request of a workers' compensation insurance carrier,
state
agency, or employer, and all involve allegations that the examination was done
negligently, causing some damage to the plaintiff. However, none involved a
situation
in which the defendant physician was accused of negligently diagnosing a plaintiff's
condition and communicating his erroneous conclusions directly to the patient. The
closest to a case on point is Promubol where the defendant physician interpreted the
plaintiff's x-ray film, sent a report to the plaintiff's insurance company, and sent
a copy
to the plaintiff. However, critical to that court's decision in favor of the
defendant doctor
was its conclusion that he had not, in fact, given advice to the plaintiff. That
court gave
the following explanation for its decision:
It is clear that the report does not advise appellant. It was neither
prepared for appellant nor directed to appellant, and it did not provide
recommendations for follow-up. There were no personal notations,
whatsoever on the report. Clearly, it represented a gratuitous notification
that the information contained therein was being sent to the insurance
carrier. Since the exam was reported as normal, sending a copy of the
report doubled as notification that appellant Promubol's sought-after
insurance increase would likely be granted.
Promubol v. Hackett (Pa. Super. 1996), 686 A.2d 417, 420.
On the other hand, in Hoover, the Maryland Court of Appeals considered a
physician's duty under circumstances similar to those in this case. In that case,
General
Electric Company required annual x-ray examinations of the chests of certain
employees
due to the effects of silica dust to which they were exposed. One of the employees
was
the plaintiff, Willard Hoover. The examinations were performed under the direction
of
the defendant, Dr. C. Vernon Williamson. The plaintiff alleged that following his
annual
examination, Dr. Williamson advised him that he had "a little infection in the
lungs,"
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when, in fact, the examination clearly revealed that he had silicosis. However, his
complaint was dismissed based on lack of a physician-patient relationship since Dr.
Williamson had been retained and paid by his employer. The trial court held that
Williamson's duty was to the company and not to Hoover. The Maryland Appellate
Court acknowledged that ordinarily recovery for malpractice is limited to situations
which
involve the relationship of a doctor and patient, but reversed the defendant's
dismissal
based on the following exception:
There is, however, a broader, a more fundamental rule of long
standing under which a physician may incur a tort obligation which is
nonconsensual and independent of contract. This is the general rule that
one who assumes to act even though gratuitously, may thereby become
subject to the duty of acting carefully, if he acts at all. Restatement, Torts,
Sec. 325, says the law is that one who gratuitously undertakes to render
services which he should recognize as necessary to another's bodily safety,
and leads the other in reasonable reliance on the services to refrain from
taking other protective steps, or to enter on a dangerous course of conduct,
'. . . is subject to liability to the other for bodily harm resulting from the
actor's failure to exercise reasonable care to carry out his undertaking.' See
also 2 Harper and James, The Law of Torts, Sect. 18.6.
Hoover v. Williamson (Md. 1964), 203 A.2d 861, 863.
That court held that even if the defendant had no duty to the plaintiff to
begin with,
he assumed a duty when he made affirmative representations to the plaintiff
regarding his
condition. Hoover is also relied on in Betesh v. United States (1974), 400 F. Supp.
238,
245-46, for the principle that a physician performing an independent medical
examination
can mislead a patient and, therefore, breach a duty to that patient by withholding
information, as well as by affirmatively misrepresenting a patient's condition.
Dr. Snider contends that if we adopt the plaintiff's theory and allow an
exception
to the physician-patient requirement in only those situations where a physician makes
affirmative representations to the examinee, then in those situations where the
examinee
does in fact suffer from some physical ailment about which he or she should be
notified,
i.e., the presence of a potentially fatal tumor, then it would be in the physician's
best
interest not to notify the examinee, and that that would not be in the public's best
interest.
We agree. Therefore, while we agree with the decision of the Maryland Court of
Appeals in Hoover that a physician who performs an independent medical examination
has a duty to exercise reasonable care when he or she communicates the results of
that
examination to the examinee, we conclude that the scope of the duty to the examinee
is
not limited to those situations in which diagnoses are negligently made and
communicated
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to the person being examined.
Based on the statutory scheme which defines the duty of every person in Montana
to exercise ordinary care and skill to avoid injury to others (õ 27-1-701, MCA), we
find
the decision of the Fifth Circuit Court of Appeals in Green v. Walker, M.D. (5th
Cir.
1990), 910 F.2d 291, persuasive. In Green, the decedent's employer required its
employees to undergo an annual physical examination and contracted with the defendant
physician to conduct those examinations. The defendant reported that all of Green's
test
results were normal and that he was employable without restriction. Approximately
one
year later, he was diagnosed with lung cancer from which he ultimately died. Prior
to
his death, he brought an action against the examining physician based on his
contention
that the physician negligently failed to diagnose his condition and that if he had,
his
chances of survival would have been greater. The district court, however, granted
summary judgment in favor of the physician on the basis that no physician-patient
relationship existed and, therefore, that the defendant had no duty to Green. The
issue on
appeal to the Fifth Circuit Court was whether, under Louisiana law, the defendant
had
a duty to the examinee to perform the examination with due care, and to report his
findings, particularly any finding which appeared to pose a threat to the physical or
mental health of the examinee. The Fifth Circuit Court held that the defendant had
such
a duty. That court acknowledged that the traditional principle of law regarding
liability
for malpractice depends on a physician-patient relationship. See Green, 910 F.2d at
296.
That court based its decision on Louisiana statutory law, in spite of a decision from
Louisiana's Court of Appeals which seemed to require the opposite result. See Thomas
v. Kenton (La. App. 1982), 425 So. 2d 396. It noted that in Louisiana "the Erie
obligation is to the [Civil] Code, the 'solemn expression of legislative will.'"
Green, 910
F.2d at 294 (quoting Shelp v. National Surety Corp. (5th Cir. 1964), cert. denied
(1964),
379 U.S. 945, 85 S. Ct. 439, 13 L. Ed. 2d 543). The statutory provision it relied on
provides: "Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it." La. Civ. Code art. 2315. That court
concluded
that Louisiana's Civil Code "permits the articulation of a duty of care that would
protect
physical examinees, if they are to be deemed other than 'patients,' a position we
do not
here concede." Green, 910 F.2d at 295. It provided the following rationale and
conclusion:
We live in an age in which the drive for an increasingly productive
workforce has led employers increasingly to require that employees subject
their bodies (and minds) to inspection in order to obtain or maintain
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employment. See Rothstein, Employee Selection Based on Susceptibility to
Occupational Illness, 81 Mich. L. Rev. 1379 (1983) (common procedures
include blood tests, urinalysis, pulmonary function tests, and x-rays). In
placing oneself in the hands of a person held out to the world as skilled in
a medical profession, albeit at the request of one's employer, one justifiably
has the reasonable expectation that the expert will warn of "any incidental
dangers of which he is cognizant due to his peculiar knowledge of his
specialization." American Mfrs. Mut. Ins. Co. v. United Gas Corp., 159
So. 2d 592, 595 (La. App. 1964).
We therefore now hold that when an individual is required, as a
condition of future or continued employment, to submit to a medical
examination, that examination creates a relationship between the examining
physician and the examinee, at least to the extent of the tests conducted.
This relationship imposes upon the examining physician a duty to conduct
the requested tests and diagnose the results thereof, exercising the level of
care consistent with the doctor's professional training and expertise, and to
take reasonable steps to make information available timely to the examinee
of any findings that pose an imminent danger to the examinee's physical or
mental well-being. To impose a duty upon the doctor who performs such
tests to do so in accordance with the degree of care expected of his/her
profession for the benefit of the employee-examinee, as well as the
employer, is fully consistent with the very essence of Civil Code article
2315.
Green, 910 F.2d at 295-96 (footnote omitted).
Green has been followed or cited with approval in Daly v. United States (9th
Cir.
1991), 946 F.2d 1467; Cleghorn v. Hess (Nev. 1993), 853 P.2d 1260, and Baer v.
Regents of Univ. of California (N.M. App. 1994), 884 P.2d 841.
Similarly, the Montana Code Annotated provides as follows:
Except as otherwise provided by law, everyone is responsible not
only for the results of his willful acts but also for an injury occasioned to
another by his want of ordinary care or skill in the management of his
property or person except so far as the latter has willfully or by want of
ordinary care brought the injury upon himself.
Section 27-1-701, MCA.
Based on õ 27-1-701, MCA, we likewise conclude that it is consistent with
statutory law in Montana to impose a duty on physicians who perform examinations of
an employee, insured, or other person at the request of a third party to exercise
the level
of care required by the examiner's professional training and experience and to make
information regarding the results of that examination available to the examinee if
the
physician's findings disclose an imminent danger to the examinee's physical or mental
well-being.
We do not, by this opinion, conclude that physicians retained by third parties
who
perform independent medical examinations have the same duty of care that a physician
has to his or her own patient. The scope of the duty attendant to an independent
medical
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examination must necessarily be developed on a case-by-case basis. We agree with the
observation of the California Court of Appeals in Keene v. Wiggins (Cal. Ct. App.
1977),
138 Cal. Rptr. 3, when it stated that:
This does not suggest, however, a doctor is required to exercise the same
degree of skill toward every person he sees. The duty he owes to each
varies with the relationship of the parties, the foreseeability of injury or
harm that may be expected to flow from his conduct, and the reliance which
the person may reasonably be expected to place on the opinion received.
A case-by-case approach is required.
Keene, 138 Cal. Rptr. at 6.
What we do hold, in this case, is that a health care provider in Montana who is
retained by a third party to do an independent medical examination has the following
duties:
1. To exercise ordinary care to discover those conditions which pose an
imminent danger to the examinee's physical or mental well-being and take reasonable
steps to communicate to the examinee the presence of any such condition; and
2. To exercise ordinary care to assure that when he or she advises an examinee
about her condition following an independent examination, the advice comports with
the
standard of care for that health care provider's profession.
For these reasons, we conclude that the District Court erred when it held that
the
defendant, Robert K. Snider, M.D., had no duty to the plaintiff, Diana L. Webb, to
exercise ordinary care under the circumstances alleged in this case. We reverse the
order
and judgment of the District Court and remand to the District Court for further
proceedings consistent with this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
Justice W. William Leaphart, specially concurring.
I concur in the result reached by the Court, however, I would have only answered
the question posed by the appellant Webb. Webb phrased the issue on appeal as
follows:
"Does a physician who undertakes to advise a patient about her condition following an
independent medical examination have an obligation to exercise reasonable care in
doing
so?"
In responding to the issue framed by Webb, I would hold that an IME doctor who
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undertakes to advise a patient about her condition following an independent medical
examination has an obligation to exercise reasonable care in so advising her.
Unlike the majority, I would not have addressed the broader questions of whether
an IME doctor who examines a person must exercise ordinary care to discover mental or
physical conditions and to take reasonable steps to communicate the presence of such
conditions to the examinee. Those are questions which were not posed by the
appellant
and are outside the scope of the facts of this appeal. While I do not necessarily
disagree
with the Courtþs analysis of those issues, they are issues for another day, another
appeal.
/S/ W. WILLIAM LEAPHART
Justice Karla M. Gray joins in the foregoing special concurrence.
/S/ KARLA M. GRAY
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