Legal Liability and the Occupational Physician

By Ronald L. Scott

Occupational physicians often perform medical tests at the direction of employers or insurers.  For example, such physicians may perform pre-employment or annual employment physical examinations or may be asked to evaluate the degree of disability suffered by an injured employee for the purpose of calculating worker’s compensation benefits.

Courts have struggled with the nature (or even existence) of a physician-patient relationship in the occupational medicine setting.  Medical negligence requires the familiar elements of duty to the patient, breach of the standard of care by the physician, causation, and damages.  However, to establish the first element requires a physician-patient relationship.  Duty arises from the physician-patient relationship.  Also, the relationship is a consensual one, i.e., both the physician and patient must intend to establish the relationship.

An early Texas case held that a physician conducting a pre-employment physical had no duty to the examinee “except to avoid injuring her” and that the “usual” physician-patient relationship was not present.  The physician apparently failed to discover or disclose  pulmonary disease which should have been evident from the examinee’s chest x-rays.  See Lotspeich v. Chance, 369 S.W. 2d 705 (Tex. Civ. App.--Dallas 1963).  The result in Lotspeich is called into doubt by the 5th Circuit case of Green v. Walker, 910 F.2d 291 (5th Cir. La.1990).  In Green, a physician performed an annual employment physical, failing to diagnose lung cancer.  The trial court found no physician-patient relationship, and therefore no duty to the patient.  The 5th Circuit reversed and held that the examination creates a physician-patient relationship to the extent of tests conducted.  Such relationship imposes a “duty to discover” and a duty to disclose known findings.

In 2000, the Texas case of Ramirez v. Carreras, 10 S.W. 3d 757 (Tex. Ct. App.--Corpus Christi 2000) held that a physician examining a “non-patient” for a third party is not required to provide professional medical care and therefore is not liable for professional negligence.  However, the physician must not injure the examinee.  In Ramirez, a physician was employed by an insurance carrier to perform a worker’s compensation impairment rating.  The plaintiff alleged that the physician put his hand on the examinee’s back and pushed him down until the examinee suffered extreme pain.

A recent New Jersey case extended the liability of occupational physicians, holding that such physicians not only have a duty to inform examinees of potentially serious medical conditions, but that such duty may not be delegated.  See Reed v. Bojarski, 764 A.2d 433 (N.J. 2001).  Reed reviewed the precedent in other jurisdictions and found three lines of cases.  The majority rule finds an absence of a physician-patient relationship controlling and only requires that a physician conducting an examination for a third party refrain from injuring the examinee.  The second view is that expressed in the Texas case of  Armstrong v. Morgan, 535 S.W. 2d 45 (Tex. Ct. App.--Texarkana 1976), i.e., finding a relationship and duty to the extent of the examination.  Another view rejects the existence of a physician-patient relationship but imposes a duty to act with reasonable care based on common-law negligence.  Reed’s x-ray showed a widened mediastinum, an indicator of lymphoma, including Hodgkin’s disease.  Reed’s  employer, Woolston Construction Company, entered into a contract with the I.T. Davey corporation to perform work at a New Jersey landfill.  Davey contracted with Environmental Medicine Resources (EMR) to perform the examinations for the Woolston workers.  EMR subcontracted the examinations to Life Care Institute (Life Care).  Bojarski, a Life Care  physician conducting the pre-employment physical advised EMR (but not Reed) of the results, and EMR even sent Reed a letter indicating that the results of the exam were normal. Reed died of Hodgkin’s disease at age 28.  The court held that the Life Care physician owed a duty of care to Reed to the extent of tests conducted, and that the duty was non-delegable.  Contractual provisions in the agreement between Life Care and EMR purporting to limit Bojarski’s duty toward Reed could not relieve the Life Care physician of the duty to directly notify Reed of the results of the x-ray.

These cases illustrate that courts may still pay homage to the consensual nature of the physician-patient relationship and the requirement of such relationship to establish the necessary duty for medical malpractice purposes.  However, it seems courts will increasingly find an “exception ” that allows for imposition of duty to the occupational physician.  As a practical matter, the non-delegable duty to notify patients can be difficult for occupational physicians to comply with.  In the case of a pre-employment physical, the examining physician must obtain accurate and complete address and telephone contact information at the time of the examination.  And a careful physician will be certain to advise examinees of any important test results even if the employer or insurer has contractually agreed to assume this burden.