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            A physician who is hired by an employer to conduct preemployment or worker's compensation physical examinations may be subject to a malpractice lawsuit for failure to discover a medical condition.

            In these cases, the physician is generally hired by the employer to conduct a preemployment examination of a job applicant.  The other likely basis for an examination of an employee by a doctor is for a report to the employer's worker's compensation carrier.  Courts, in reviewing malpractice claims stemming from these types of examinations, typically look to the purpose and scope of the examination itself to determine if liability exists.

            The key element in these cases is whether a doctor hired by a third party enters into a physician/patient relationship upon which the patient can assert a malpractice claim for failure to properly diagnosis the patient's medical condition.

            Most of these cases hold that a doctor has no liability for a medical examination of a prospective employee absent the physician/patient relationship, unless, of course, the alleged injury was caused by the examination itself.  The cases holding that no liability exists range from Johnston v. Sibley, 558 S.W.2d 135, decided in Texas in 1977 to Ervin v.American Guardian Life Assurance, 545 A.2d 354 decided in Pennsylvania in 1988.  In Johnston, the court held that a doctor conducting worker's compensation examination owes a duty of care regarding the report only to the employer.  In Ervin, the Pennsylvania court found that an employer's doctor who examines a prospective employee without giving treatment or advice was notliable for any erroneous diagnosis.  Thus, the general standard created by these courts is that unless a physician/patient relationship is established, the only duty owed by the doctor is to the employer.  The limit of liability to the patient is for any injury caused during the examination. 

            If the scope and purpose of the medical examination is limited to the doctor providing the employer or insurance carrier with with a report for their use, then the court will usually find that the physician is not in a direct doctor/patient relationship and is therefore not liable for any alleged malpractice.

            It is possible, however, that the scope of the physical examination may be expanded so that a physician/patient relationship is established and a more encompassing duty of care is created.  The doctor, even though he is hired by the employer for a specific purpose, could provide additional treatment or advice which the patient relied upon.  If it can be clearly established that the doctor gave treatment or advice to the patient beyond the examination report, and the patient relied on the doctor's advice, then that doctor may be liable for any misdiagnosis or negligent care given to that patient.

            For example, a prospective employee could see a physician for a routine preemployment examination.  The patient may ask the doctor about recurrent headaches or other medical conditions that exceed the established scope of the examination.  If the doctor attempts to treat those symptoms, he may create a physician/patient relationship and a duty to properly diagnose the patient's medical problems.  If the recurrent headaches in fact turn out to be a symptom of a brain tumor, the physician could be subject to liability for failing to diagnose this condition during the examination.

            Thus, a physician should recognize that a duty of care may be created if during the examination of a potential employee or a worker's compensation case, the physician undertakes in some way to act on behalf of the patient.  In doing so, the doctor is no longer acting as the agent of the employer who hired him, but establishes a physician/patient relationship and the concomitant duty that such a relationship entails.  If the patient acts in reasonable reliance on the doctor's examination and advice, courts have concluded that medical malpractice standards govern, and there is a duty of care simply on the basis of the relationship created by the referral and examination.

            Thus, physicians should recognize the limited nature of examinations they may undertake on behalf of employers or worker's compensation insurance companies.  Physicians should be wary of expanding the scope of their examination beyond the specific requirements set forth by the employer or insurance company.  Such expansion may create a duty of care to the patient and subject the doctor to potential liability.

Pre-Employment Examination

by Attorney Frank E. Reardon

April 1993

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

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