The opinion of the court was delivered by
Plаintiff Peggy Smith was injured in an automobile accident and filed suit against Edward Williams, the other driver. During the litigation, plaintiff agreed to an independent medical examination by defendant’s medical expert. Plaintiff alleges that during the examination, she was asked personal and inappropriate questions and was sexually battered by the examining doctor. Plaintiff brought an action for negligence, misrepresentation, assault, battery, invasion of privacy, outrage, and violation of her right to informed consent. The district court granted the examining doctor summary judgment on the claims of informed consent, assаult, battery, tort of outrage, and invasion of privacy. Plaintiff voluntarily
The relevant facts are incorporated from the district court’s order granting summary judgment. Peggy Smith alleged she suffered head and neck injuries in an automobile accident on January 11, 1994, and filed an action against Edward Williams. Rather than requiring Williams’ attorney to obtain a court-ordered medical examination pursuant to K.S.A. 60-235, Smith’s attorney agreed his client would undergo an independent medical examination by Dr. Lauren Welch, a board-certified neurologist. The purpose of the independent medical examination was to determine the extent, if any, of Smith’s head and neck injuries.
During the examination at Dr. Welch’s office, while Smith and Dr. Welch were alone, Welch asked Smith a series of questions about her medical history. While taking Smith’s history, Dr, Welch would snap his fingers and tell her she was not answering fast enough. Numerous times Dr. Welch told Smith she was stupid or lying and she had better start cooperating or she would not receive her settlement.
Some of Welch’s questions had obvious medical relevance to a heаd and neck injury and other questions required a detailed statement of Smith’s sexual past. Although not a complete list, Dr. Welch asked Smith whether her parents and her sister were sexually active, whether Smith was having sex with someone else while dating her present boyfriend, what qualities about her boyfriend made her want to have sex with him, whether Smith had ever had sex with more than one person at a time, and whether she had ever had sex with her sister.
While asking Smith questions of a sexual nature, Dr. Welch told Smith numerous times that she had better answer his questions because he worked for the other side and a failure to answer would result in Smith not receiving a settlement in her personal injury action. Dr. Welch asked Smith if she knew what it meant to not “count your chickens before they hatch.” He stated it meant she had better not count on her settlement because she was not doing what he required.
During the course of the examination, Smith repeatedly placed her hands over her breasts. Dr. Welch continually removed her hands from her breasts. Welch told Smith not to be a “baby” about the examination.
After examining Smith’s breasts, Dr. Welch moved his hands towards Smith’s abdomen. Smith covered her pubic region with her hands. As Welch’s hands reached Smith’s pubic area, he attempted to move Smith’s hands. At that point, Smith sat uр and ended that portion of the examination.
Dr. Welch then placed his hands on the back of Smith’s head and started lifting. Smith complained that this was hurting her. Dr. Welch told her to “just take it, she would be fine.”
Smith settled her claim for the injuries to her head and neck. She then filed this action against Dr. Welch, claiming the examining physician had acted negligently; violated her right to informed consent; misrepresented the need for various aspects of the examination; and committed an assault, a battery, an outrageous act, and an invasion of her privacy.
Standard of Review
The burden on the party seeking summary judgment is a strict one. Thе trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that
In a letter to Smith’s counsel, Smith’s expert, Dr. Janice M. Mullinix, wrote: “It is a departure from standard neurologic practice to do a breast examination or a gynecologic examination as part of assessment of head injury or of headaches. It is a further departure from standard neurologic practice to persuade a patient to consent to these procedures.”
After significant discovery, Dr. Welch filed a motion for summary judgment. The district court stated in its conclusions of law:
“20. That Dr. Janice Mullinix, who has been retained by Plaintiff’s counsel to provide expert testimony, is not disqualified as an exрert because she has not performed independent medical examinations, but is not qualified legally to usurp the function of the Court in directing the scope of the examination. Accordingly, the relevance of her opinions is questionable.
“22. The nature and scope of questions about sexual activity is not within the province and understanding of laymen; rather, expert testimony is required on this issue. In light of the Plaintiff not having any expert testimony on this issue, any alleged tort relating to the nature and scope of the sexual questioning fails as a matter of law.
“23. Inasmuch as Plaintiff, by and through her counsel, cоnsented to the examination, the invasion of privacy and assault and battery claims fail as a matter of law.
“25. The Plaintiff’s allegations, assuming the same to be true, would not cause a reasonable person to be outraged, and accordingly, the tort of outrage claim fails as a matter of law.”
The district court granted Dr. Welch partial summary judgment. Smith’s negligence and misrepresentation claims survived summary judgment. Smith voluntarily dismissed those claims without prejudice and appealed the grant of summary judgment. Our review is limited to Smith’s claims of assault, battery, outrageous conduct, and invasion of privacy.
K.S.A. 60-235 рermits a party to seek an independent medical examination when a litigant places his or her medical condition at
“5. Plaintiff was involved in a motor vehicle accident on January 11,1994, as a result of which she sustained injuries to her head and neck. As a result thereof plaintiff filed suit on May 6, 1994 in the Sedgwick County District Court (Case No.94 C. 1323 ) to recover damages she sustained in said accident. In the course of said lawsuit, counsel for the defense requested that plaintiff submit to an independent medical examination. The examination was scheduled to be conducted by the defendant herein at his place of business.” (Emphasis added.)
Dr. Welch admitted these allegations in his answer; therefore, we conclude Dr. Welch’s examination was limited to a determination of Smith’s “injuries to her head and neck”
Expert Witness and Scope of Testimony
The district court found that the testimony of Smith’s expert witness, Dr. Mullinix, had litde relevance because a medical expert “is not qualified legally to usurp the function of the Court in directing the scope of the examinations.” The district judge’s conclusion is difficult to understand. Here, there was no court-ordered examination. Rather, the parties agreed to an examination to ascertain the extent of Smith’s head and neck injuries sustained in an automobile accident. Even if the district court had ordered an examination to ascertain the extent of Smith’s injuries, the scope of that examination would be limited to determining the extent of the head and neck injuries plaintiff suffered in the automobile accident. Judges are not experts on neurology; the testimony by Smith’s expert as to standard practice in that field is relevant. Simply stated, that is the issue to be determined in this case.
The district judge also found that the
“nature and scope of questions about sexual activity is not within the province and understanding of laymen; rather, expert testimony is required on this issue. In light of the Plaintiff not having any expert testimony on this issue, any alleged tort relating to the nature and scope of the sexual questioning fails as a matter of law.”
Amici Curiae
The Kansas Association of Defense Counsel (KADC) and the Kansas Trial Lawyers Association (KTLA) were permitted to file amicus curiae briefs. KADC noted that it is critical to the defense of personal injury actions that defendants be able to test and, where possible, challenge the nature and extent of a plaintiff’s alleged damages. It claims that recognition of a physician-patient relationship between plaintiff and an examining physician, or creation of negligence causes of action against such physicians, will necessarily have a chilling effect on the willingness of doctors to perform such examinations. Therefore, KADC contends, it is absolutely essential that the right of independent medical examinations be preserved.
KADC recognizes there should not be an absolute prohibition of claims alleging intentional torts committed by an examining physician. It notes that an examining physician does not have authority to sexually molest or intentionally inflict bodily harm on a person examined. KADC asserts that on the merits of this particular dispute, plaintiff has not established the necessary elements of sexual battery through expert testimony. It concludes that this court should not use this case to impose duties upon an examining physician that would allow negligence and malpractice claims to be asserted by persons injured during an independent medical examination who had never received or requested treatment from the examining doctor.
KTLA agrees that a claim for medical negligence requires proof of a physician-patient relationship and a breach of the duty created by that relationship. See
Delaney v. Cade,
Smith’s Assertions
Smith admits she consented to an examination to ascertain the scope of her head and neck injuries. She asserts that Dr. Welch exceeded the scope of a medical examination for head and neck injuries. She argues that even if a breast examination were required, Welch did not conduct a medical exam; he groped and sexually fondled her.
A medical examination of the body of a person is a technical invasion of privacy, battery, or tresрass, regardless of its result, unless the person or some authorized person consents to it.
Younts v. St. Francis Hospital
&
School of Nursing,
The remedy for an invasion of one’s right to privacy is a civil action. One’s right to privаcy is invaded if another intentionally intrudes, physically or otherwise, upon one’s solitude or seclusion and if the intrusion would be highly offensive to an ordinary person. PIK Civ. 2d 14.61. It is also important to note that assault, battery, and sexual battery are intentional civil injuries and are also separate and distinct statutory crimes. “An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”
Taiwo v. Vu,
The Kansas Criminal Code, K.S.A. 21-3101 et seq., does not bar, suspend, or otherwise affect any civil right or remedy, authorized by law to be enforced in a civil action, based on conduct which the code makes punishable. K.S.A. 21-3103. Assault, battery, and sexual battery are statutory crimes; hоwever, the civil injury caused by an assault, battery, or sexual battery is not merged in the crime in that the injured party has a civil right or remedy against the perpetrator of the crime.
Tort of Outrage
The tort of outrage has two threshold requirements that the trial court must determine: (1) whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by the plaintiff was of such extreme degree the law must intervene because the distress inflicted was so severe that no reasonable person should be expected to endure it.
Taiwo v. Vu,
To prove the tort of outrage, a litigant must show: (1) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental distress was extreme and severe.
This court has previously reviewed outrage claims. The tort of outrage was recognized in
Dawson v. Associates Financial Services Co.,
Dawson filed an action alleging that the finance company intentionally harassed her by threatening to repossess her automobile, knowing that she had multiple sclerosis and was making a claim under an insurance policy to cover the loan payments. The trial court directed a verdict in favor of the finance company. Dawson appealed.
The
Dawson
court reversed the district court, holding that a creditor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the debtor is subject to liability for such emotional distress, and if bodily harm to the debtor results from it, for such bodily harm.
In
Wiehe v. Kukal,
The Wiehe court reversed the judgment, noting that Wiehe’s conduct, uncommendable though it was, was not “extreme and outrageous” because he did not touch Kukal’s husband. The Wiehe court found there was no evidence that Wiehe had any prior knowledge of Kukаl’s susceptibility to mental distress, and, in fact, the evidence was that her mental and physical health had been good and she had evidenced no tendency toward mental or emotional distress or disease prior to the occurrence on December 1, 1973, or that Wiehe intended to cause harm to Kukal.
In
Taiwo v. Vu,
Here, the district court held thаt the threshold requirement, a showing that the alleged conduct of Dr. Welch could reasonably be regarded as so extreme and outrageous as to permit recovery, was not met. In reaching this conclusion, the court did not recognize the distinction between the Wiehe court’s finding that the conduct alleged was not outrageous because there was no intent to harm the victim and the Taiwo court’s finding that Vu’s abuse of the criminal justice system and intentional harm to the plaintiffs was outrageous. Here, Dr. Welch is alleged to have intentionally committed criminal acts under the guise of performing an independеnt medical examination and to have caused mental distress to the plaintiff.
Dr. Welch's Argument
Dr. Welch presents several arguments in support of the district court’s grant of summary judgment. Dr. Welch first claims that as the examining physician, his duty was not to Smith, but to the entity that retained him to examine Smith. In support of this argument, Dr. Welch cites cases that conclude that a physician performing an independent medical examination has no duty to treat the person examined for illnesses or to diagnose illnesses. See
Ervin v. American Guardian Life Assur.,
Dr. Welch’s second argument is that court-ordered or аgreed-to examinations are appropriate even if they are invasive and potentially embarrassing to the examinee. We agree that a litigant cannot seek compensation for an injury and then refuse examination of the injury by the opposing party because that examination would be embarrassing to the injured party.
If a proper breast examination and an examination of Smith’s genitalia were appropriate in investigating and determining the extent of her head and neck injuries, the potentially embarrassing aspects of such an examination, while unfortunate, would be necessary. But Smith’s expert states that to determine a head or neck injury, an examination of a woman’s breasts or pubic region is not necessary or appropriate. In addition, Smith alleges Dr. Welch did not perform a proper examination of her breasts; he fondled them and attempted to fondle her pubic region. Whether this part of the examination was required or performed in the manner in which Smith alleges is the issue to be determined.
Dr. Welch’s final argument is that he had qualified immunity insulating him from liability for injuries caused during the examination by his negligent or intentional acts. The basis of this argument is the historical protection afforded parties and witnesses from liability for damages arising from their testimony during court proceedings. The problem with this argument is obvious. The immunity Welch asserts is directed to the testimony of the witness. If a witness testifying in open court leaped from the stand and battered the attorney questioning the witness, there is little doubt
Even though Smith’s claims are intentional torts, othеr courts have considered a physician’s liability for negligence during an independent medical examination.
Greenberg v.
Perkins,
In determining the extent of Dr. Greenberg’s liability, the Colorado court analyzed a physician’s duty of care while performing independent medical examinations. The court noted:
“Many courts set forth a ‘general’ rule that in the absence of a physician-patient relationship a physician owes no duty to an examinee. [Citations omitted.] Many of these same courts, however, recognize a duty of care if the examining physician undertakes in some way to act on behalf of the еxaminee [citations omitted] or induces reasonable reliance by the person examined. [Citations omitted.] Some courts conclude that medical malpractice standards govern, and recognize a duty of care simply on the basis of the relationship created by the referral and examination. [Citations omitted.] Others agree but temper this conclusion by expressly limiting the scope of the duty to the functions the physician agrees to undertake. [Citations omitted.] Still others hold that the absence of a physician-patient relationship precludes a malpractiсe action, with the concomitant broad duty of care, but that an ordinary negligence action can be maintained in appropriate circumstances. [Citations omitted.] Some of these latter cases are based on the well recognized principle that a person who assumes to act must act with care. [Citations omitted.]”845 P.2d at 535 .
Regardless of the standard of care, the Colorado court noted “all courts that have considered the issue agree, under one form of analysis or another, that a physician owes a duty of care to a non-
Dr. Welch was retained by the defendant to perform an examination and determine the extent of a head and neck injury. Although the examination was not court-ordered, it was agreed to by the parties’ counsel. This agreement was in lieu of a court-ordered independent medical examination. Under either circumstance, Smith had every reason to believe she would be treated with dignity. She certainly had a right not to be criminally assaulted, battered, or sexually battered. If the allegations of such conduct are proven at trial, would an average person find a medical examination under those circumstances to be outrageous? Yes.
The parties also disagree whether a physician-patient relationship existed between Smith and Dr. Welch. A physician is obligated to his or her patient to use reasonable and ordinary care and diligence in the treatment of cases the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physiсians.
Durflinger v. Artiles,
Was there a physician-patient relationship between Dr. Welch and Smith? No. Dr. Welch was not treating Smith or examining her to recommend a course of treatment. The physician was retained to provide an expert medical opinion on an issue involved in civil litigation. Under such circumstances, the traditional physician-patient relationship does not exist.
Does a physician performing an independent medical examination have a duty not to negligently injure the person examined? Yes. A physician performing an independent medical examination has a duty to use reasonable and ordinaiy care and diligence in the examination the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians. See
Is the duty of a physician not to injure the person being examined affected by the fact that physician was employed by a third рarty? No. The duty of a physician conducting an independent medical examination not to injure the person being examined is not affected by the fact that the physician was employed to conduct the examination by a third party and no contractual relationship existed between the physician and the person being examined.
Malone v. University of Kansas Medical Center,
A physician performing an independent medical examination is obligated to the person being examined to make a reasonable disclosure of pertinent facts and hazards within the physician’s knowledge relating to the proposed examination so that the person being examined may make an intelligent decision to consent or refuse the examination.
Is the physician-patient relationship necessary for an intentional tort claim asserted by the person being examined? No. As to the intentional tort claims of invasion of privacy, assault, battery, and sexual battery, it makes no difference whether a physician-patient relationship exists.
Did the district court err in granting summary judgment on Smith’s invasion of privacy, assault, battery, and sexual battery claims? Yes. Drawing inferences in favor of Smith, as required in reviewing a summary judgment, the facts alleged by Smith indicate that during the independent medical examination, Dr. Welch repeatedly grabbed Smith’s hands and moved them away from her breasts so he could grope and fondle her breasts, placed a cold stethoscope on her nipples, and attempted to touch her genitalia. The acts alleged that there was an intentional touching of the person of another who is not the spouse of the offender and who did not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another. The facts alleged, if proven at trial, establish invasion of privacy, assault, battery, and sexual battery and those claims, in the context of a medical examination, are
Cross-appeal
Smith voluntarily dismissed without prejudice her negligence and misrepresentation claims. Yet Dr. Welch seeks to cross-appeal the district court’s denial of summary judgment on those claims. As Dr. Welch acknowledges, an appeal is appropriate only after a final judgment on all claims has been rendered.
Bates & Son Construction Co. v. Berry, 217
Kan. 322, 324,
Reversed and remanded for further proceedings.