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Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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            The duty of care a physician typically owes a patient is based upon the physician-patient relationship.  The typical physician-patient relationship is created when a patient contacts the physician directly to manage their care.  The relationship is not so clearly defined when the contact is initiated by a third party.  For example, there are instances in which a prospective employer contacts a physician to perform a pre-employment screening.  Sometimes a physician is contacted by a colleague who is seeking back up coverage.  In these situations, the physician’s treatment role appears more limited.  The Supreme Court of New Jersey and a superior court in Massachusetts recently dealt with the issue of whether limitation of a physician’s treatment role also limits the duty of care the physician owes directly to a patient. 

            In Reed v. Bojarski, the Supreme Court of New Jersey considered whether a physician’s limited treatment role in providing a pre-employment physical at the request of a third party has any bearing on the physician’s duty to inform the patient of adverse physical findings.  Arnold Reed was a heavy-equipment operator for a construction company.  In 1991, his company entered into a contract with another company to perform work at a New Jersey landfill. The Occupational Safety and Health Administration required Reed to undergo a pre-employment physical.  The company Reed’s employer entered into a contract with hired Environmental Medicine Resources, Inc. to perform the pre-employment exams.  Environmental Medicine then subcontracted the examinations to Life Care Institute, Inc. which is an outpatient care facility that provides various types of medical imaging services. 

            As part of their screenings, the employees were required to have a single, frontal chest x-ray.  Under the sub-contract agreement between Environmental Medicine and Life Care, Life Care was responsible to evaluate the x-ray films as either normal or abnormal.  If any x-ray was deemed abnormal by Life Care, Environmental Medicine would then further evaluate the employee to obtain a diagnosis.  

            A physician employed by Life Care conducted a physical examination of Reed.  Another physician of Life Care was responsible for reading the chest x-ray and reporting the results to the physician who examined Reed.  The radiologist who reviewed Reed’s films reported that Reed had a widened mediastenum, which is an indicator of lymphoma, including Hodgkin’s Disease, and cardiomegaly, an unusually large heart.  The examining physician then sent the x-ray along with the rest of Reed’s examination package to Environmental Medicine and noted that the x-ray was abnormal by writing “cardiomeg” in the comments section.  No reference to the widened mediastenum which was detected was noted.  Two days later the examining physician received a formal report from the radiologist which recommended a follow-up CT scan.  The physician never forwarded this suggestion or the report to Environmental Medicine.  A representative from Environmental Medicine subsequently sent Reed a letter stating that he was in good health and never mentioned the x-ray findings.

            Six months later, Reed returned to Life Care for another examination.  In the interim, he had lost 25 pounds and had been experiencing flu like symptoms.  Reed was later admitted to the hospital for his symptoms and was diagnosed with Stage IIB Hodgkin’s disease.   Reed died eight months later at the age of 28. 

            Reed’s wife brought a medical malpractice lawsuit on behalf of her husband’s estate naming the physicians who were involved in her husband’s pre-employment physical, along with Life Care and Environmental Medicine.  The radiologist was dismissed from the case on a motion for summary judgment and Environmental Medicine settled.  At trial, counsel for the physician who examine Reed introduced his contract with Environmental Life and argued that the agreement limited the duty of care he owed Reed. The physician also presented evidence that under the contract patient exam data was centrally collated and that Life Care had the responsibility of forwarding the data to the patient. 

            The jury was instructed that a physician performing a pre-employment physical owes the examinee a duty of reasonable care in conducting the examination which encompasses taking reasonable steps to inform the examinee of findings which pose a danger to his health.  The plaintiff argued that the duty of reasonable care required the physician to contact Reed directly, whereas the physician argued that he acted reasonably by expecting Environmental Medicine to forward Reed the examination results.  The jury found that it was reasonable for the physician to expect Environmental Medicine to inform the patient.  Reed appealed the verdict and petitioned for certification with the Supreme Court of New Jersey. 

            The Supreme Court of New Jersey granted the petition and in rendering its decision framed the issue of the case as whether a physician performing a pre-employment examination can delegate his duty to inform a patient of a potentially serious medical condition.  In concluding that the physician’s duty is not delegable, the Court looked at the various jurisdictions that have explored this issue. 

            The Court pointed out that in the majority of jurisdictions that adhere to the traditional malpractice model, have held that there is no duty to report abnormalities in the absence of a classic physician-patient relationship.  The Court then went on to review the dissenting opinions in these jurisdictions along with a second line of cases which impose a duty to reveal a medical abnormality to a patient even in the absence of the traditional physician-patient relationship.  In these decisions, the courts reasoned that the patient is the person most affected by the information, the duty to inform that patient is not burdensome, and that disclosure is essential to the treatment and retardation of diseases and other ailments, and that.   

            Although the Supreme Judicial Court of New Jersey acknowledged that there was no physician-patient relationship in this case, it considered this to be only a factor in defining what is reasonable conduct.  The Court concluded that any reasonable person would expect that the duty to communicate with a patient who is found to be ill is non-delegable.  As a result, the Court found that no matter what contract the defendant physician was operating under, this did not relieve him of the responsibility to inform Reed of his ailment.  The jury’s verdict was overturned.  

            In Massachusetts, a jury found a physician negligent who failed to report to assist a nurse mid-wife who encountered complications when delivering a patient.  The physician in this case was contacted by the manager of the mid-wife group on the morning that the plaintiff’s labor began and asked to provide back-up coverage.  There was a dispute as to whether the physician who agreed to provide coverage disclosed the fact that he was present in another hospital providing care when contacted.  During the course of the plaintiff’s labor, the physician was involved with a decision to give the plaintiff Pitocin.  After receiving the Pictocin, the plaintiff suffered a placental abruption and began continuously bleeding.  When the defendant physician was contacted about the plaintiff’s bleeding, he advised the mid-wife that he could not report to the hospital because he was attending another high risk pregnancy at another hospital.  The mid-wife found another physician to assist her.  By the time this physician arrived, the plaintiff had been bleeding for 27 minutes.  An emergency c-section was performed.  The baby had sustained severe brain damage and died several days later.  The jury awarded the plaintiff $6.3 million dollars. 

            As these cases point out, physicians need to be aware that even if they have a limited treatment role in a patient’s case, they still owe a duty of reasonable care to that patient and not just the third person who contacted them.  Anytime a physician detects a potentially serious medical condition in a patient they have examined, the physician must take steps to make sure the patient is informed about their findings and understands the importance of seeking further treatment.  A physician should never just assume that the third party who asked them to participate in a patient’s care will provide the patient with this significant information.   When a physician agrees to be a part of a treatment team, they should define what their role is and make sure that they have the time and the expertise to fill that role no matter how limited the role appears to be.


Legal Obligations to Third Parties that Arise as a Result of Providing Care to a Patient

by Attorney Frank E. Reardon   May 2001