Lead Opinion
Donald Landers brought this negligence action against his employer and against the doctor who performed his employment medical examination after both the employer and the doctor failed to advise Landers of the results of his chest x-ray. The trial court denied the doctor’s motion for summary judgment, finding that, under regulations adopted to implement the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq., an employment examiner owes a duty to inform an examinee directly of all the results of an employment medical examination, including chest x-ray results which are not available until after the conclusion of the physical examination. Pursuant to the grant of his application for interlocutory review, the doctor appeals, contending he is entitled to judgment as a matter of law because an employment examiner owes no legal duty to an examinee. In addition, the doctor contends that Landers’ employer’s failure to provide Landers a copy of the x-ray report constitutes an intervening cause, entitling him to summary judgment. For the following reasons, we reverse.
To prevail at summary judgment under OCGA§ 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiffs case. Lau’s Corp. v. Haskins,261 Ga. 491 (405 SE2d 474 ) (1991). In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment.
(Citation omitted.) Scott v. Cushman & Wakefield &c.,
The record shows the following undisputed facts. For about 20 years, Landers worked for North Brothers, Inc. and NB Environmental, Inc. (collectively, “North Brothers”) as an insulation installer. As part of his job, Landers handled asbestos materials. Beginning in the early 1990s, North Brothers, in accordance with OSHA regulations, required Landers to submit to a yearly medical examination with a physician it chose and compensated. At the relevant time, North Brothers had a contract with Work Horizons, an occupational medicine practice, to perform employment medical examinations. The purpose of the required examination was to examine each asbestos worker for signs of asbestos-related diseases such as lung cancer and to certify that he was physically capable of using a negative-pressure respirator. On January 29, 1998, Vincent Greico, a Work Horizons doctor, performed Landers’ annual employment medical examination which included a chest x-ray, pulmonary function or lung capacity test, and a physical examination of his upper body. Landers described the examination as brief and “limited,” consisting of the doctor asking how he felt, listening to his lungs and chest, and looking in his throat and ears. At the conclusion of the exam, Greico told Landers his pulmonary function test and physical examination were fine and gave Landers a written report titled “Physician’s Opinion” to take to North Brothers. In that document, Greico indicated that he had detected no medical conditions “that would place [Landers] at an increased risk of material health impairment from his planned ‘exposure to asbestos’ ” and that Landers was cleared to wear a respirator. Greico further certified that he informed Landers of the results of the examination and of any medical conditions that may result from asbestos exposure. Upon his return to work, Landers’ supervisor told him that he “passed” the medical examination and was cleared to use a respirator.
In accordance with Greico’s routine practice, Landers’ x-ray was delivered to Work Horizons’ affiliated hospital to be evaluated
A year later, Greico again performed Landers’ annual medical examination, which included a chest x-ray. Without referring to Landers’ 1998 chest x-ray or the radiologist’s report during the examination, Greico cleared Landers to wear a respirator. Within a few days, Greico received a report on Landers’ 1999 chest x-ray that again showed a spot on Landers’ lung. Greico telephoned North Brothers to speak to Landers. Greico told Landers about the results of his most recent chest x-ray, and asked him what he had done about the situation since the 1998 x-ray. Alerted to the spot on his lung for the first time, Landers sought medical care and learned he had advanced lung cancer.
Landers brought this action for damages, and his wife asserted a claim for loss of consortium, against Greico and Greico’s employer, the Medical Center of Central Georgia, Inc. and Central Georgia Health Systems, Inc., jointly doing business as Work Horizons (collectively, “Greico”),
1. In related arguments, Greico contends he is entitled to judgment as a matter of law because Landers failed to set out facts supporting the first element of a negligence claim, a duty of care.
(a) Greico contends that OSHA regulations cannot support a finding of a legal duty because the regulations impose duties only on employers. We agree.
In this regard, Landers’ theory of recovery is grounded in the federal Occupational Safety and Health Act, 29 USC § 651 et seq.; an OSHA regulation concerning toxic and hazardous substances, 29 CFR 1926.1101; and OCGA § 51-1-6.
As part of this scheme, the Secretary of Labor adopted a regulation providing for medical surveillance of workers who are required to wear negative-pressure respirators and whose work exposes them to a specified amount of asbestos. 29 CFR § 1926.1101 (m) (1). The regulation requires every employer with such employees to institute a medical surveillance program under which the employer provides, at its expense, examinations by a physician. 29 CFR § 1926.1101 (m) (2) (i). A medical examination must be provided before the employee begins working in the area where negative-pressure respirators are worn or where exposure to asbestos may be at or above a certain limit and at least annually thereafter. Id. Such an examination must include the following: a medical and work history “with special emphasis directed to the pulmonary, cardiovascular, and gastrointestinal systems”; a specified questionnaire which addresses many aspects of exposure to respiratory hazards;
The employer shall obtain a written opinion from the examining physician [which] shall contain the results of the medical examination and [which] shall include:
(A) The physician’s opinion as to whether the employee has any detected medical conditions that would place the employee at an increased risk of material health impairment from exposure to asbestos;
(B) Any recommended limitations on the employee or on the use of personal protective equipment such as respirators; and
(C) A statement that the employee has been informed by the physician of the results of the medical examination and of any medical conditions that may result from asbestos exposure. . . .
29 CFR § 1926.1101 (m) (4) (i). The regulation commands: “[t]he employer shall provide a copy of the physician’s written opinion to the affected employee within 30 days from its receipt.” 29 CFR § 1926.1101 (m) (4) (iii).
Landers contends these regulations impose duties, not only on employers, but also directly upon physicians hired as employment examiners. Landers argues that violation of these duties may give rise to a cause of action under OCGA § 51-1-6. As we have stated,
We have no doubt that OSHA regulations by definition constitute as much a duty under the law and are as enforceable as the laws authorizing their creation and promulgation (see 29 USCA § 651 et seq.), and breach of those regulations is a violation of law. They should be admissible not merely as “standards” of performance, but as evidence of legal duty, violation of which may give a cause of action under OCGA§ 51-1-6.
Cardin v. Telfair Acres of Lowndes County,
Further, as we have recognized, the Occupational Safety and Health Act and OSHA regulations create duties only within the context of the employer-employee relationship. Brantley v. Custom Sprinkler Systems,
(b) Greico contends he is entitled to judgment as a matter of law on the basis that the undisputed facts show that there existed no doctor-patient relationship from which a duty of care would arise. Again, we agree.
The essential elements to establish liability in a medical malpractice action are “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” (Citations and punctuation omitted.) Zwiren v. Thompson,
Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action. It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of a physician-patient relationship. In such cases, called classic medical malpractice actions, doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. The relationship is consideredconsensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.
(Citations and punctuation omitted.) Schrader v. Kohout,
Landers contends in this case Greico did “assume the role of treating” him, giving rise to a doctor-patient relationship, because, inter alia, Greico’s examination exceeded the scope requested by the employer and required by OSHA. Specifically, Landers points to his testimony that in earlier years the examination had included a digital prostate check and that Greico might have performed one in 1998. Pretermitting whether a prostate check exceeded the scope of the examination required by OSHA regulations,
(c) By this holding, we do not imply that physicians who examine employees at the request of and for the benefit of employers, and who thereby place themselves outside the traditional physician-patient relationship, can never be found to owe any legal duty to the examinees in question.
2. Greico contends the employer’s failure to provide Landers a copy of the notice regarding the radiologist’s findings and recommendation constituted an intervening cause and, therefore, he is entitled to judgment as a matter of law.
“In order to state a cause of action for negligence, a plaintiff must establish the essential elements of duty, breach of duty, and proximate cause that amounts to a legally sufficient causal connection between the conduct alleged and the resulting injury.” (Footnote omitted.) CSX Transp. v. Deen,
Because Landers failed to identify the essential element of a duty underlying his claims based on OSHA regulations and medical malpractice, see Division 1 (a) and (b), supra, Greico’s argument concerning an intervening cause is moot as to those claims. Because Greico’s motion for summary judgment did not challenge any other claims, see Division 1 (c), supra, the issue of an intervening cause as to any such claim is not ripe for our review.
Judgment reversed.
Notes
See 29 CFR § 1926.1101, Appendix E (OSHAreguIation requiring interpretation of chest x-rays “by a B-reader, a board eligible/certified radiologist, or an experienced physician with known expertise in pneumoconioses”).
See Division 1 (a), infra, discussing 29 CFR § 1926.1101 (m) (4) (iii).
Landers also named as a defendant Gary H. Lebow, another Work Horizons doctor, who examined Landers in earlier years. There appears to be no allegation that Lebow personally performed any act relevant to Landers’ 1998 exam.
In earlier proceedings, the trial court granted North Brothers’ motion for summary judgment.
See Brown v. All-Tech Investment Group,
OCGA§ 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”
See 29 CFR § 1926.1101 (m) (2) (ii), Appendix D (mandatory medical questionnaires for employees exposed to asbestos).
The Act “imposes a duty on employers and provides for enforcement of that duty by criminal sanctions, civil penalties recoverable by the United States . . . and, under certain circumstances, injunction of the violation of the duty by a district court acting upon application of the Secretary of Labor.” Jeter v. St. Regis Paper Co., 507 F2d 973, 976 (5th Cir. 1975).
See also Long Leaf Indus. v. Mitchell,
See cases discussed in “Violation of OSHA Regulation as Affecting Tort Liability,” 79 ALR3d 962, § 5. Landers particularly relies on Cardin v. Telfair Acres of Lowndes County. In that case, we noted that OSHA enforcers placed the blame for a collapsed trench on the decedent’s employer and not on the independent contractor which was hired to supply and operate an excavator to shore and slope the trench.
See cases discussed in Stacy J. Bagley, “Enough is Enough! Congress and the Courts React to Employers’ Medical Screening and Surveillance Procedures,” 99 Dick. L. Rev. 723, 735-739 (Spring 1995), and Judith Richter, “Taking the Worker as You Find Him: The Quandary of Protecting the Rights as well as the Health of the Worker with a Genetic Susceptibility to Occupational Disease,” 8 Md. J. Contemp. Legal Issues 189, 203 (Spring-Summer 1997).
See cases discussed in ‘What Constitutes Physician-Patient Relationship for Malpractice Purposes,” 17 ALR4th 132, § 10.
See 29 CFR § 1926.1101 (m) (2) (i) (requirements of medical examination).
See MCG Health v. Casey,
We note that in this case a primary purpose of the examination was to examine an asbestos worker for signs of asbestos-related disease and that the physician purportedly undertook to inform the worker of the results of the examination. Among other conduct, Landers traces his injury to Greico’s failure to communicate at the conclusion of the physical examination the preliminary nature of the results then available and his failure to relay to Landers directly the later-received radiologist’s analysis and recommendation that Landers receive fluoroscopy. See MCG Health v. Casey,
Concurrence Opinion
concurring fully and specially.
I write separately as to the issue addressed in Division 1 (b) to point out that
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____Other courts examine the extent of the relationship and the type[s] 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,109 Nev. 544 ,853 P2d 1260 ,1263-1264 (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.,15 Cal. 4th 456 ,63 Cal. Rptr. 2d 291 ,936 P2d 70 , 80 (Cal. 1997). These are appropriate inquiries that illuminate the concerns that motivate tort liability.
Stanley v. McCarver,
The Arizona court is not alone in adopting this or a similar approach. See Betesh v. United States, 400 FSupp. 238, 245-247 (D.C. 1974) (finding duty existed under Maryland law for radiologist hired by employer to report abnormalities to the employee); Daly v. United States, 946 F2d 1467, 1468 (9th Cir. 1991) (finding duty existed under Washington law for doctor to report abnormal results obtained during pre-employment exam despite absence of doctor-patient relationship); Reed v. Bojarski,
Although I favor the balanced approach expressed in these opinions, in light of our well-established precedent in this area, I fully concur in the majority opinion.
On Motion for Reconsideration.
In an opinion issued June 2, 2005, this Court reversed the trial court’s denial of the defendants’/appellants’ motion for summary judgment. The appellees, Donald and Mary Landers, filed a motion for reconsideration. Pursuant to Court of Appeals Rule 37 (e),
A reconsideration will be granted on motion of the requesting party, only when it appears that the Court overlooked a material fact in the record, a statute or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneously construed or misapplied a provision of law or a controlling authority.
The appellees’ entire argument in support of their motion consists of the following: “It appears that there is a basis for granting this Motion for Reconsideration pursuant to Rule 37 (e).” Because the appellees fail to make any attempt to state a basis for granting the motion under the applicable standard, we hereby determine the motion to be frivolous. Accordingly, we deny the motion for reconsideration and assess penalties in the amount of $500 against appellees’ counsel pursuant to Court of Appeals Rule 15 (b).
Motion for reconsideration denied.