Occupational Medicine

Occ Med Physicians Cannot Delegate the Duty to Report Adverse Findings - Reed v. Bojarski, 2001.NJ.0000030 (N.J. 2001)

This is an important case dealing with the physician-patient relationship in situations where the physician is employed by a third party.  While this case arose in the occupational medicine context, it is also applicable in managed care settings where patients may have to deal with physicians who, by contract, have no direct duty to the patient.  In this case, defendant physician worked for a medical group that contracted with plaintiff's employer to do physical examinations on its employees.  Plaintiff was personally examined by defendant and was also give a chest x-ray and other diagnostic tests.  The chest x-ray was abnormal, with an indication of possible lymphoma.  These finding were given to defendant, who did not contact the patient or make other efforts to assure that this information was provided to the patient.  Instead, these findings were sent to defendant's employer, who, inexplicably, sent a letter to plaintiff assuring him that everything was fine.  Plaintiff was later diagnosed with Hodgkin's disease and died at age 28.  The issue before the New Jersey Supreme Court was: "whether a physician, retained to perform a pre-employment physical, has a non-delegable duty to inform the patient of a potentially serious medical condition."

After an extensive review of the precedent in other jurisdictions, the court concluded that the cases fell into three groups.  The majority rule embraces the traditional medical malpractice model and focuses on the absence of the classic physician-patient relationship in third-party examinations. Courts adhering to that rule find that a physician, examining a person at the behest of a third party, at most owes the extremely limited duty to simply avoid harming the examinee during the examination. A second category includes those courts willing to find that a third-party physician's act of examining someone creates a doctor-patient relationship or a nontraditional doctor-patient relationship to the extent of the examination. A third category incorporates courts that find no doctor-patient relationship, but impose the duty to act with reasonable care based on common-law negligence principles. Courts in the second and third categories typically find that a physician in a pre-employment examination setting owes an examinee an affirmative and direct duty of disclosure when an examination uncovers any previously unknown, life-threatening disease.

The court then reviewed the applicable precedent in New Jersey and concluded that although plaintiff's employer had paid the third party group that arranged the physicals and in turn contracted with defendant's employer, defendant and plaintiff entered into a relationship in which defendant owed plaintiff a duty of reasonable care to the extent of the examination and in communicating its outcome. Plaintiff relied on defendant's superior knowledge to assess the state of his health. Subsumed in that reliance was an entirely reasonable belief that, if defendant had found a potentially life threatening abnormality, he would not have remained silent about it. The court found that "Whatever else Reed [plaintiff] might reasonably have expected of the doctor performing his pre- employment physical, he had an absolute right to expect that he would be told if something was wrong. No contract by the Doctor or his employer with a third party could relieve Dr. Bojarski [defendant] of that obligation.  This is a very important case and reflects a trend among all courts to find physician's personally liable for informing patients of adverse findings, irrespective of contractual language to the contrary.  With the universal concern about corporate interference with physician decisionmaking, it is expected that jurisdictions who do not currently recognize this duty will adopt it when presented with the appropriate facts.  (While not addressed by the court, it is assumed that whoever sent the patient the letter misinforming him about this health would also be liable.)