(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued October 23, 2000 -- Decided January 23, 2001
LONG, J., writing for a Majority of the Court.
The issue in this case is 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.
Arnold Reed was a heavy-equipment operator for the Woolston Construction Company. Pursuant to
OSHA regulations, Reed was required to undergo a pre-employment physical prior to performing contract work at a
New Jersey landfill. I.T. Davey Corporation, the company for which Woolston was to perform the work, had
contracted with Environmental Medicine Resources, Inc. (EMR), of Georgia, to perform the physical examination.
EMR, in turn, subcontracted with Life Care Institute Inc. (Life Care), of Glassboro, New Jersey. The EMR-Life
Care contract provided that the examination include a chest X ray and that Life Care was to determine whether or
not the X ray was “normal” or “abnormal.” Life Care was required to report any abnormalities to EMR within
twenty-four hours of the examination.
Dr. Bojarski, an employee of Life Care, conducted Reed's physical. Dr. Bojarski was advised by Dr.
DePersia, the radiologist, that the X ray revealed a “widened mediastinum” (chest cavity). Dr. Bojarski did not
advise Reed of this condition and sent the X ray and his report to EMR, failing to mention the problem. On May 14,
1991, relying on Dr. Bojarski's report, EMR advised Reed that he was in good health. Again, no mention was
made of the mediastinum condition. Reed was subsequently diagnosed with Stage IIB Hodgkin's disease, and died
on October 27, 1992, at the age of 28. A widened mediastinum may be an indicator of lymphoma, including
Hodgkin's disease.
Reed's wife brought suit, on her behalf and on behalf of Reed's estate, against Dr. Bojarski, Dr. DePersia,
Life Care, EMR, and a number of John Doe defendants. Dr. DePersia was granted summary judgment and EMR
settled with Reed. The case against Dr. Bojarski and Life Care went to trial.
The trial court informed the jury that a physician performing a pre-employment physical owes the
examinee a duty of reasonable care in the conduct of the examination and that this duty encompasses taking
reasonable steps to inform the examinee of findings that pose a danger to his health. The trial judge further advised
the jury to consider the duty owed in the context of the EMR-Life Care contract. The jury ruled in favor of Dr.
Bojarski, finding that he acted within accepted standards of medical care.
In an unpublished per curiam opinion, the Appellate Division affirmed. Although the Appellate Division
agreed with Reed that the contract could not alter Dr. Bojarski's duties, it concluded that the jury acted properly in
considering whether the doctor's actions were reasonable under the contract.
The Supreme Court granted defendant's petition for certification.
HELD: A physician, performing a pre-employment screening, who determines that the patient has a
potentially serious medical condition, cannot delegate to the referring agency the responsibility of notification.
1. Three broad categories can be discerned from cases that address the issue of the duty owed by a physician to a
patient in the pre-employment screening setting. First, most jurisdictions adhere to the traditional malpractice
model in which the absence of a classic physician-patient relationship results in the physician owing no duty to the
examinee to discover and disclose abnormalities or conditions. Courts adhering to this model have held that the
physician owes, at most, a limited duty not to harm the patient during the examination. A second category
acknowledges that, even in the absence of a traditional physician-patient relationship, there is a disclosure
requirement where the examination reveals a medical abnormality. A third category holds that even where there is
no doctor-patient relationship, there exists a common-law duty of care by the physician. (Pp. 10-21)
2. New Jersey has long recognized that a physician owes a duty of reasonable care to the nontraditional patient in
the context of a third-party examination. When a person is referred to a physician for a pre-employment physical, a
physician-patient relationship is created at least to the extent of the examination, and a physician in that context is
expected to exercise reasonable care commensurate with his expertise and training, both in conducting the
examination and in communicating the results to the examinee. This duty is non-delegable, and any contract that
purports otherwise violates New Jersey's public policy and common law. (Pp. 21-30)
3. Dr. Bojarski was not relieved of his duty to inform Reed of his ailment by the EMR- Life Care contract.
Admitting the contract before the jury on the “reasonableness” of Dr. Bojarski's actions was reversible error. (Pp.
30-31)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial
consistent with this opinion.
JUSTICE VERNIERO filed a separate, concurring opinion, expressing his view that the court's holding
does not require a physician performing examinations at the request of a third-party entity to discover or diagnose
potential ailments beyond the scope of the third-party referral.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LaVECCHIA and ZAZZALI join in
JUSTICE LONG'S opinion. JUSTICE VERNIERO filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
63 September Term 1999
LINDA REED, as Executrix of
the ESTATE OF ARNOLD S. REED,
deceased, and LINDA REED,
Individually,
Plaintiff-Appellant,
v.
MICHAEL H. BOJARSKI, D.O. and
LIFE CARE INSTITUTE, INC.,
t/a LIFE CARE MEDICAL CENTER,
Defendants-Respondents,
and
D.A. DePERSIA, M.D.,
ENVIRONMENTAL MEDICINE
RESOURCES, INC., JOHN DOE,
M.D.'s (A - Z) and JANE DOE
Corporations (A - Z) Jointly,
Severally and/or in the
alternative,
Defendants.
Argued October 23, 2000 -- Decided January 23, 2001
On certification to the Superior Court,
Appellate Division.
Jay H. Greenblatt argued the cause for
appellant (Jay H. Greenblatt & Associates,
attorneys).
Joel B. Korin argued the cause for
respondents (Kenney & Kearney, attorneys).
Steven N. Flanzman, Deputy Attorney General,
argued the cause for amicus curiae, New
Jersey State Board of Medical Examiners
(John J. Farmer, Jr., Attorney General of
New Jersey, attorney; Andrea M. Silkowitz,
Assistant Attorney General, of counsel).
The opinion of the Court was delivered by
LONG, J.
The requirement of a physician's examination as a condition
of employment, often paid for by the prospective employer, is not
uncommon. This case focuses on the responsibility of a physician
in such circumstances. More particularly, we are confronted with
the question whether a physician, performing a pre-employment
screening, who determines that the patient has a potentially
serious medical condition, can omit informing the patient and
delegate by contract to the referring agency the responsibility
of notification. The answer is no.
I
The facts of the case are not seriously disputed: Arnold
Reed was a heavy-equipment operator for the Woolston Construction
Company. In 1991, Woolston entered into a contract with the I.T.
Davey Corporation to perform work at a New Jersey landfill.
Occupational Safety and Health Administration (OSHA) regulations
required Reed to undergo a pre-employment physical. Davey
contracted with Environmental Medicine Resources, Inc. (EMR) to
perform the examinations for the Woolston workers. EMR, located
in Georgia, subcontracted the examinations to Life Care Institute
Inc. (Life Care), of Glassboro, New Jersey, an outpatient medical
facility that provides various types of medical imaging services,
physical therapy, and occupational medicine. Pursuant to the
agreement between Davey and EMR, Reed's examination was to
include, among other tests, a single, frontal X ray of the chest.
The EMR-Life Care contract provided that Life Care's
responsibility was to analyze the chest X ray and evaluate it
either as “normal” or “abnormal.” If Life Care determined that
the X ray was abnormal, it was to forward it to EMR within
twenty-four hours. EMR took responsibility for “over-reads and
evaluation to obtain a diagnosis.”
Dr. Michael H. Bojarski, an employee of Life Care, conducted
Reed's physical. Another physician employed by Life Care, D.A.
DePersia, M.D., a radiologist, was responsible for reading the
chest X rays and reporting to Dr. Bojarski. Upon reviewing
Reed's X ray, Dr. DePersia told Dr. Bojarski that Reed had a
widened mediastinum, the cavity in the center of the chest. Dr.
Bojarski testified that he could not “personally” see the widened
mediastinum on the X ray but relied on the expertise of Dr.
DePersia. It is an accepted medical fact that, among men in
their twenties, a widened mediastinum may be an indicator of
lymphoma, including Hodgkin's disease. Dr. DePersia also noted
that Reed's heart was unusually large, a medical condition known
as cardiomegaly. Reed was apparently aware of that condition.
Dr. Bojarski sent the X ray, along with the rest of Reed's
examination package, to EMR. He noted that the X ray was
abnormal and wrote “cardiomeg” in the comments section. No
reference to the widened mediastinum was made. Although two days
later Dr. DePersia gave Dr. Bojarski a written report on Reed's X
ray recommending a follow-up CT-scan, Dr. Bojarski never conveyed
that suggestion or the report to EMR. Inexplicably, on May 14,
1991, Dr. Michael Barnes of EMR wrote to Reed and informed him
that he was in good health. In the letter he made no mention of
the widened mediastinum or any potentially dangerous condition.
About six months later, in November 1991, Reed returned to
Life Care for another examination. In the interim, he had lost
25 pounds and was suffering from flu-like symptoms. Dr. Bojarski
did not ask Reed whether he had ever learned of or followed up on
the widened mediastinum. In December 1991, Reed was admitted to
the hospital and, after a chest X ray showed a large mass in his
mediastinum, he was diagnosed with Stage IIB Hodgkin's disease.
Reed died eight months later on October 27, 1992, at the age of
28.
Linda Reed, executor of her husband Arnold's estate, brought
suit on behalf of the estate and on her own behalf against Dr.
Bojarski, Dr. DePersia, Life Care, EMR, and numerous John Doe
defendants. Dr. DePersia was granted summary judgment and EMR
settled with Reed, resulting in a stipulated dismissal. The
case against Dr. Bojarski and Life Care went to trial.
At trial, Reed's counsel objected to the introduction of the
EMR-Life Care contract because it appeared to limit Dr.
Bojarski's duty toward Reed. He ultimately agreed to its
admission if the court instructed the jury “that [agreements
between EMR and Life Care] do not represent, necessarily, the law
that they are going to apply.” The trial court agreed and told
the jury before defense counsel's opening statement: “the
contractual relationship between E.M.R. and Life Care Institute
does not necessarily result in the same relationship that exists
as between the defendants in this case and the plaintiff. Those
duties will be explained to you . . . .”
Reed presented two liability witnesses: Linda Reed and Dr.
Maurice Cairoli, Arnold Reed's treating physician (an expert in
medicine and oncology, although not an expert in occupational
medicine), who testified regarding the standard of care
applicable to Dr. Bojarski. In answering Reed's counsel's
questions about the obligations of a physician in the
circumstances of this case, Dr. Cairoli stated:
That X ray has to be pursued. That X ray has
to be acted upon. If a . . . certified
radiologist who is entrusted with looking at
an X ray and making a medical opinion says
that the mediastinum is widened, until proven
otherwise, the physician who has knowledge of
these results must be concerned about the
possibility of malignancy, must convey that
information on to the patient, and must do
further testing.
During the defense case, Dr. Bojarski and Leonard Kraus,
President and Manager of Life Care, testified concerning the EMR-
Life Care contract. The defendants also called Dr. George
Mellendick as an expert in occupational medicine. Dr. Mellendick
testified that, in an examination scheme like the one used by EMR
and Life Care, the common approach is for “the data [to] be
centrally collated and transmitted in a sensible way.” He
further testified that he understood that Dr. Barnes had the
“responsibility . . . to get the information and to communicate
directly to the patient-employee what the findings were. . . .
[I]deally, we like one physician to collate the information and
get it back to the patient.”
Dr. Mellendick stated that the EMR-Life Care contract
“clearly spelled out that [Life Care] would have certain
responsibilities for getting data . . . and forward[ing] anything
which was abnormal.” He testified that the arrangement between
EMR and Life Care was “fairly standard” and that Dr. Bojarski's
conduct was “reasonable” in light of the contract and typical
practices in occupational medicine.
Both sides proposed jury instructions. Reed's version
incorporated the traditional duties that flow from the existence
of a doctor-patient relationship. Dr. Bojarski's version focused
on the reasonableness of his conduct. Reed's counsel asked the
Court to instruct the jury that Dr. Bojarski's duty to advise
Reed is non-delegable, and that the duty exists notwithstanding
the contract. The trial court agreed to instruct the jury that
the contract affected only the relationship between EMR and Life
Care.
The trial court properly informed the jury that a physician
performing a pre-employment physical owes the examinee a duty of
reasonable care in the conduct of the examination and that that
duty encompasses taking reasonable steps to inform the examinee
of findings that pose a danger to his health. He went on to say:
What plaintiff alleges is that upon the chest
X ray having been read by Dr. DePersia, and
she having discussed her finding, a
possibility of a mediastinal abnormality, and
suggesting CT scanning, that Dr. Bojarski
breached the duty of reasonable care owed by
him to the plaintiff, to inform the plaintiff
directly or EMR of those X ray findings.
Dr. Bojarski, on the other hand, contends
that he did act reasonably by reading the X
ray, advising EMR that it was abnormal and
forwarding the original X ray to EMR.
Defendant Dr. Bojarski likewise alleges that
EMR breached the standard of care by the
letter written to Mr. Reed in light of the
report of abnormal X ray mailed to EMR by Dr.
Bojarski.
Now if you find that Dr. Bojarski satisfied
his duty of reasonable care, and the duty to
inform, then you may not find him negligent,
and your verdict should be for the defendant.
On the other hand, if you find Dr. Bojarski
breached the duty owed by a reasonable care,
including the duty to inform, your verdict
should be for the plaintiff.
You must make the determination of whether
Dr. Bojarski took reasonable steps to inform
the plaintiff, Mr. Reed, of any findings
under the facts of this case. In other
words, you must determine whether it was
reasonable for Dr. Bojarski to forward the
materials concerning Mr. Reed to EMR and rely
upon EMR's contractual obligation to review
the materials and inform Mr. Reed of any
adverse findings.
If you find that it was reasonable for Dr.
Bojarski to expect EMR to do that, then you
may not find Dr. Bojarski negligent. On the
other hand, if you find that Dr. Bojarski
acted unreasonably in relying on EMR to
inform the patient of findings, and in not
informing EMR or the plaintiff of Dr.
DePersia's findings, including her letter to
him diagnosing a widened mediastinum, you
must determine Dr. Bojarski's conduct to have
been negligent.
The following day, the jury unanimously determined that Dr. Bojarski had not deviated from accepted standards of medical care. Judgment was entered accordingly. Reed's motion for a new trial on all issues was denied.
Reed appealed. The Appellate Division affirmed the judgment entered upon the jury verdict in an unpublished per curiam opinion. After reviewing the facts and procedural history, the panel addressed the instruction in light of Reed's contention that the trial court erred in explaining Dr. Bojarski's duties and the extent to which those duties were defined by the contract between EMR and Life Care. The Appellate Division agreed with Reed that the contract could not alter Dr. Bojarski's duties, but concluded that it was proper for the trial court to allow the jury to use the contract to determine whether Bojarski's conduct was “reasonable.” Because the sole issue of malpractice involved communication of the diagnosis, the panel determined that the charge, the testimony, and the jury's common sense provided a sufficient basis to sustain the verdict.
We granted Reed's petition for certification on February 3, 2000. 163 N.J. 75 (2000). We also granted amicus curiae status to the New Jersey State Board of Medical Examiners. The issue before us is as described above: 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.
II
Courts throughout the nation have been grappling with the
question of the obligation owed by a physician to a patient in
the pre-employment screening setting. See J.P. Ludington,
Annotation, Physician's Duties and Liabilities to Person Examined
Pursuant to Physician's Contract with Such Person's Prospective
or Actual Employer or Insurer,
10 A.L.R.3d 1071 (2000)(collecting
cases on the topic); see also Green v. Walker,
910 F.2d 291, 296
(5th Cir. 1990)(holding that under Louisiana law, “when an
individual is required, as a condition of future or continued
employment, to submit to a medical examination, that examination
creates a relationship between the examining physician and the
examinee, at least to the extent of the tests conducted”); Daly
v. United States,
946 F.2d 1467, 1470 (9th Cir. 1991)(explaining
that under Washington law, duty may be extended beyond doctor-
patient relationship provided that examinee is foreseeably
endangered by failure to make known to examinee abnormal
findings); Hoover v. Williamson,
203 A.2d 861, 863 (Md.
1964)(holding that even in absence of traditional physician-
patient relationship, doctor may be subject to liability if his
or her conduct warrants imposition of duty under general tort
principles); Lee v. City of New York,
560 N.Y.S.2d 700, 701 (N.Y.
App. Div. 1990)(finding no duty in absence of physician-patient
relationship unless physician affirmatively treats or advises
employee concerning treatment and that treatment causes further
injury).
Most jurisdictions adhere to the traditional malpractice
model in which the absence of a classic physician-patient
relationship results in the physician owing no duty to the
examinee to discover and disclose abnormalities or conditions,
let alone report them. See, e.g., Hafner v. Beck,
916 P.2d 1105,
1108 (Ariz. Ct. App. 1995) (holding that psychologist conducting
independent medical examination on behalf of insurance carrier in
connection with workers' compensation claim may not be subjected
to liability for medical malpractice by workers' compensation
claimant because physician's duty runs only to party requesting
examination); Felton v. Schaeffer,
229 Cal.App.3d 229, 238-39
(Cal. Ct. App. 1991) (holding physician immune from medical
malpractice action and ordinary negligence claim based on alleged
misdiagnosis absent physician-patient relationship); Rogers v.
Horvath,
237 N.W.2d 595, 597 (Mich. Ct. App. 1976)(holding that
physician's duty arises from physician-patient relationship and
absent that relationship physician may not be subject to
liability for malpractice); LoDico v. Caputi,
517 N.Y.S.2d 640,
641-42 (N.Y. App. Div. 1987) (holding that absence of physician-
patient relationship prevents plaintiff from recovering from
examining physician for failure to diagnose brain tumor during
disability examination); Ervin v. American Guardian Life
Assurance Co.,
545 A.2d 354, 358 (Pa. Super. Ct. 1988) (holding
surgeon not liable for failure to diagnose and disclose cardiac
disease on insurance exam because physician-patient relationship
absent).
Two cases invoking the traditional model are instructive for
their dissenting opinions that reveal movement away from the
model. Indeed, in one of those jurisdictions, the dissenting
view has subsequently been adopted as the majority rule. Both
cases involve doctors who, in accordance with policy guidelines
that required intermediary institutions to collate and transmit
information, failed to disclose life-threatening abnormalities to
examinees.
In Beamon v. Helton,
573 So.2d 776 (Miss. 1990), overruled
by Meena v. Wilburn,
603 So.2d 866 (Miss. 1992), plaintiff sought
Social Security benefits, and the Disability Determination
Service (DDS) of Mississippi ordered an examination. Id. at 777.
DDS employed a physician to conduct the examination during which
X rays were taken revealing “probable pulmonary malignancy.”
Ibid. That night, in accordance with DDS guidelines requiring
the agency to inform an examinee of a life threatening illness,
the doctor sent a report by telephone to DDS, specifically
stating his impression that the plaintiff had a malignancy and
recommending that the DDS examiner contact the plaintiff about
this problem. Ibid. DDS, however, never informed the plaintiff
of the abnormality. Ibid.
In resolving the subsequent malpractice suit against the
doctor, the Supreme Court of Mississippi held that no physician-
patient relationship existed and refused to impose a duty upon an
examining physician independent of that relationship. Id. at
778. The court concluded that the doctor discharged his duty to
the examinee when the doctor complied with the DDS guidelines in
simply notifying the DDS examiner of the life-threatening
condition. Ibid.
In a dissenting opinion, three justices fashioned
alternative theories of liability. First, the dissent posited
that an actual physician-patient relationship, although not
coextensive with the traditional model, is created when a
physician examines a person at the behest of a third party and
that that relationship comes with an attendant duty to the extent
of the examination. Id. at 783 (Sullivan, J., dissenting).
Second, the dissent determined that the doctor also owes the
plaintiff a common-law duty to conduct the examination with
reasonable care, even in the absence of a doctor-patient
relationship. Ibid. Under either theory, the dissent concluded
that the plaintiff could reasonably expect the doctor, in a five-
minute phone call, to notify him directly of a life-threatening
condition that required immediate treatment. Ibid. “Under such
circumstances, what, if any, duty does one human owe to another?”
Id. at 779.
Two years later, in Meena v. Wilburn,
603 So.2d 866 (Miss.
1992), the Supreme Court of Mississippi adopted the latter of the
two alternative theories of liability posited by the dissent in
Beamon. The Meena court held that the absence of a physician-
patient relationship will not insulate a physician from liability
where the traditional elements of negligence are established.
Id. at 869-70. The court explained that “[t]he presence or
absence of a doctor-patient relationship is simply a factor to
consider in determining the type or nature of duty owed, if any,
to the injured patient or non-patient.” Id. at 870.
In a case closely paralleling Beamon, a Georgia appellate
court in Peace v. Weisman,
368 S.E.2d 319 (Ga. Ct. App. 1988),
affirmed the classic malpractice approach. When Peace applied
for Social Security benefits, the Disability Determination
Service (DDS) retained a physician to conduct a physical
examination. Id. at 319-20. Under guidelines that were in
place, the physician was to report the results of the examination
to the DDS only. Id. at 322.
The physician's report to the DDS contained an evaluation of
a routine chest X ray that revealed an abnormality in the chest
area. Id. at 320. DDS denied the application for benefits
without providing the applicant a copy of the report or informing
him of its contents. Ibid. Four months later, the applicant was
diagnosed with lung cancer, the disease to which he shortly
succumbed. Ibid. When the applicant's wife brought a medical
malpractice action on behalf of her deceased husband against the
physician for failing to diagnose and notify her husband of the
lung cancer, the Georgia court held that the doctor could not be
held liable for malpractice because of the absence of a
physician-patient relationship. Id. at 320-21. The court found
that the doctor's only duty was to avoid injuring the applicant
during the examination. Id. at 321.
The dissent identified a physician-patient relationship
resulting from the examination, given the examinee's reasonable
expectations of disclosure and the evaluative purpose of the
examination itself. Id. at 322 (Deen, P.J., dissenting). “Under
these circumstances, who in the world would not have expected the
doctor to tell him of any abnormal findings?” Ibid. The dissent
noted that, under the majority opinion, “[t]he only one left
uninformed is the one most affected by the information.” Id. at
322-23. For the dissent, the facts favored a finding of a
physician-patient relationship that in turn imposed on the
examining physician a duty to divulge to the applicant any
abnormalities. Id. at 323. The dissenting opinion concluded
that the “intolerable result” of the majority opinion “denies a
remedy for a wrong, fosters irresponsibility on the part of such
consulting physicians, and may allow unwitting bureaucrats to
deprive a human being of a fighting chance to live.” Ibid.
A second line of cases acknowledges that, even in the
absence of a traditional physician-patient relationship in the
pre-employment physical context, there is a disclosure
requirement where the examination reveals a medical abnormality.
For example, in Daly v. United States, supra, 946 F.
2d at 1468,
plaintiff, as part of a preemployment physical examination for
the Veteran's Administration (VA) hospital, submitted to a chest
X ray and tuberculosis test. Ibid. The radiologist's review of
the X ray indicated an abnormality of the lung. Ibid. The
radiologist, however, never informed the plaintiff. Ibid. For
the next two years, plaintiff sought treatment several times for
lung-related disorders at the VA employee health unit. Ibid.
Further chest X rays were ordered, and the VA radiologist noted
the lung abnormality but the radiologist again failed to inform
Daly of the abnormality. Id. at 1469. Four years after the
initial X ray, the plaintiff consulted a pulmonary specialist who
diagnosed the lung disease sarcoidosis. Ibid. Sarcoidosis is
incurable and potentially fatal, but prompt treatment may halt
its progress. Id. at 1468. The plaintiff in Daly did not
receive a diagnosis until the sarcoidosis had reached an
irreversible advanced stage, rendering him permanently disabled.
Ibid.
Although the Ninth Circuit refused to determine the “exact
contours” of the doctor's duty to disclose, it nonetheless found
persuasive expert testimony given at trial “that, at a minimum,
the radiologist should have notified Daly of the abnormality.”
Id. at 1470. The court thus held that the VA radiologist had the
“hardly burdensome” duty to inform Daly of what he detected in
the X ray. Ibid.
Also instructive is Betesh v. United States,
400 F. Supp. 238 (D.D.C. 1974), a case bearing some resemblance to this one.
Betesh reported to an armed forces examination station in
Maryland for a pre-induction physical examination. Id. at 241.
A radiologist under contract with the Selective Service System,
who read an enlargement of Betesh's X ray, observed an
abnormality and prepared a report that stated “[t]he left hilium
is slightly enlarged as to the upper mediastinum. This may be of
no significance, but it is not possible to rule out sarcoid,
tuberculosis adeniter, or lymphoma.” Ibid. Betesh was never
shown the radiologist's report or informed of the abnormality on
the X ray. Ibid. He was rejected for service because of his
abnormal X ray, but that explanation was not revealed to him, and
he assumed the rejection was attributable to a knee injury.
Ibid. When he was ordered to report to the same station six
months later, he looked into his medical file. Id. at 242. Only
then did he learn of the abnormality. Ibid. Three days later, a
series of private diagnostic tests revealed Hodgkin's disease.
Ibid. Although Betesh's form of Hodgkin's disease is
successfully treatable at an early stage, his disease had
progressed in six months to such an extent that cure was
impossible. Ibid.
The court found that the government's duty to inform Betesh
derived from specific federal regulations on point. Id. at 243-
45. However, it also held that, regardless of any applicable
federal regulations, the government was liable for breach of the
standard of care under the common law of Maryland. More
particularly, the Court stated that three theories had to be
considered:
(1) Even in the absence of a doctor-patient
relationship, a doctor who assumes to act
must act carefully with respect to all
aspects of the examination; (2) where a
doctor acts primarily for the benefit of an
employer in examining a prospective employee,
the doctor must act carefully with respect to
all aspects of the examination; (3) where a
doctor-patient relationship exists, the
doctor must act with care.
[Id. at 245.]
The Court went on to declare that, under each of those theories,
plaintiff could recover and that government physicians are “under
a duty to act carefully, not merely in the conduct of the
examination but also in subsequent communications to the
examinee.” Id. at 246. The court, therefore, held that under
Maryland common law the pre-induction physical imposed upon a
physician “a duty to disclose what he had found and to warn the
examinee of any finding that would indicate that the patient is
in danger and should seek further medical evaluation and
treatment.” Id. at 247. The court added, “[t]his duty is
stronger when the physician has no reason to believe that the
examinee is aware of the condition and danger.” Ibid.
Another third party examination case arose in the insurance
setting. In Deramus v. Jackson National Life Insurance Co.,
92 F.3d 274, 275 (5th Cir. 1996), the wife of a decedent who died of
Acquired Immune Deficiency Syndrome (AIDS) brought an action
against a life insurance company that had rejected decedent's
life insurance application. The plaintiff alleged that the
insurer had a duty to inform decedent and his wife or their
private physician that decedent's blood had tested positive for
Human Immunodeficiency Virus (HIV) during the examination the
insurer required of all applicants. Id. at 277. The Fifth
Circuit held that under Mississippi law an insurance company has
no duty to divulge the results of a medical examination to an
applicant, id. at 280, but that a physician, regardless of
whether a doctor-patient relationship exists, has a duty to
disclose because a doctor's “disclosure to, at least, the patient
is essential to the treatment and retardation of diseases and
other ailments.” Ibid.
Three broad categories can be discerned from those cases.
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.
III
New Jersey has long recognized that a physician owes a duty
of reasonable care to the nontraditional patient in the context
of a third-party examination. Neil J. Squillante, Comment,
Expanding the Potential Tort Liability of Physicians: A Legal
Portrait of “Nontraditional Patients” and Proposals for Change,
40 UCLA L. Rev. 1617, 1637 (1993). Over 35 years ago in Beadling
v. Sirotta,
41 N.J. 555 (1964), this Court began its march away
from applying the traditional medical malpractice paradigm.
George Beadling applied for a job as a machinist and his would-be
employer scheduled a pre-employment physical that included a
chest X ray. Id. at 557. The radiologist who examined Beadling
found a lung abnormality that he believed to be evidence of
active tuberculosis. Id. at 557-58. Beadling was not hired and,
after the personnel manager recommended that Beadling see his own
doctor, he was admitted to the hospital for treatment of
tuberculosis. Id. at 558. The record failed to establish
whether Beadling had suffered from active tuberculosis during the
time at issue. Id. at 559-60.
Beadling sued numerous parties, including the radiologist.
Id. at 556. The radiologist defended on the ground that he had
no physician-patient relationship with Beadling, and, therefore
no corresponding duty. Id. at 561. In a bench trial, the Law
Division found in favor of Beadling, and we granted certification
on our own motion. Id. at 556. Although we recognized that the
relationship of an employee and a physician, to whom the latter
is referred for a pre-employment physical, is not a traditional
doctor-patient relationship, we nevertheless declared “that a
physician in the exercise of his profession examining a person at
the request of an employer owes that person a duty of reasonable
care.” Id. at 561. However, we declined to fix the boundaries
of the duty on the ground that there was no evidence that any
breach existed in that case. Id. at 561-62.
Beadling formed the foundation for the case most relevant
here -- Ranier v. Frieman,
294 N.J. Super. 182 (App. Div. 1996)--
in which the Appellate Division affirmed the existence of a non-
traditional physician-patient relationship in the pre-employment
physical setting and invoked traditional negligence principles in
divining a duty of reasonable care on the part of the physician
so engaged. Id. at 184, 189. There, Penice Ranier who worked as
a driller of boards for personal computers claimed that vision
problems were making it impossible for him to continue and sought
social security disability benefits. Id. at 184. The Department
of Labor, Division of Disability Determinations (Division),
referred Ranier to an ophthalmologist to determine whether he was
disabled. Id. at 185-86. The ophthalmologist reported that
Ranier was able to work, and he was denied benefits. Id. at 186.
As time passed, Ranier's vision problems continued, and, after
further examination, Ranier's own ophthalmologist diagnosed a
brain tumor in his optic chasm. Ibid. Ranier brought a
malpractice action against the ophthalmologist retained by the
Division. The physician, in turn, moved for summary judgment on
the ground that, because he was involved in screening rather than
treating and was paid by the Department of Labor, he did not owe
Ranier a duty of reasonable care. Id. at 186-87. The trial court
granted summary judgment. Id. at 186.
The Appellate Division reversed, having satisfied itself
that there was
nothing in the decisional law of this
jurisdiction and, indeed, nothing in the
common understanding of the community
regarding medical professional standards that
would immunize a physician from liability for
a professionally unreasonable diagnosis to
the substantial detriment of the examinee,
even if the examination is made at the
expense and behest of a third party.
[Id. at 187.]
The court declared that it is not necessary to denominate the
pre-employment physical as creating a traditional doctor-patient
relationship in order to find the existence of a duty: “The
substantive content of reasonable care in the third-party
situation is dependent upon relevant negligence principles
applied consistently with appropriate public policy concerns.”
Id. at 188. Judge Pressler, writing for the panel, noted that
the existence of a duty is a matter of law, id. at 189, and that
the doctor who examined Ranier had owed him a duty “to make a
professionally reasonable and competent diagnosis.” Id. at 190.
The court stated that Ranier's reliance on the Division-retained
ophthalmologist to make a competent diagnosis was reasonable and
foreseeable, and in keeping with public policy and community
expectations, id. at 190-91, stating that
when an individual is required, as a
condition of future or continued employment,
to submit to a medical examination, that
examination creates a relationship between
the examining physician and the examinee, at
least to the extent of the tests conducted.
This relationship imposes upon the examining
physician a duty to conduct the requested
tests and diagnose the results thereof,
exercising the level of care consistent with
the doctor's professional training and
expertise, and to take reasonable steps to
make information available timely to the
examinee of any findings that pose an
imminent danger to the examinee's physical or
mental well-being.
[Id. at 191 (quoting Green v. Walker, supra,
910 F.
2d at 296).]
In short, under Ranier, when a person is referred to a
physician for a pre-employment physical, a physician-patient
relationship is created at least to the extent of the
examination, and a duty to perform a professionally reasonable
and competent examination exists. A professionally unreasonable
examination that is detrimental to the examinee is not immunized
from liability because a third-party authorized or paid for the
exam. Included within the notion of a reasonable and competent
examination is the need to “take reasonable steps to make
information available timely to the examinee of any findings that
pose an imminent danger to the examinee's physical or mental well
being.” Ranier v. Frieman, supra, 294 N.J. Super. at 191
(quoting Green v. Walker, supra, 910 F.
2d at 296).
We fully subscribe to that articulation of the duty of a
physician performing a pre-employment physical examination under
contract to a third party. As we have often said, “'whether a
duty exists is ultimately a question of fairness. The inquiry
involves a weighing of the relationship of the parties, the
nature of the risk, and the public interest in the proposed
solution.'” Kelly v. Gwinnell,
96 N.J. 538, 544 (1984) (quoting
Goldberg v. Housing Auth.
291 N.J. Super. 578, 583 (1962)). A
duty is said to arise out of the existence of a relationship
between the “parties such that social policy justifies” its
imposition. W.Page Keeton et al., Prosser & Keeton on the Law of
Torts, §56, at 374 (5th ed. 1984).
Although the pre-employment physical clearly does not
establish a traditional physician-patient relationship, that is
of no moment. The exact nature of the relationship is simply a
factor to be considered in determining what duty exists. What is
crucial is that a relationship is created in which a physician is
expected to exercise reasonable care commensurate with his
expertise and training, both in conducting the examination and in
communicating the results to the examinee. Concomitantly, the
patient is entitled to rely on the physician to tell him of a
potential serious illness if it is discovered. Any reasonable
person would expect that and the duty to communicate with a
patient who is found to be ill is non-delegable. When the doctor
who ascertains the abnormality communicates it directly to the
patient, he or she has the best chance of obtaining prompt
remedial care and the best hope of avoiding falling through the
cracks of a multi-party system. To the extent that a contract
purports to insulate the examining physician from liability for
breaching the duty to communicate abnormalities found in a pre-
employment exam, it violates the basic public policy of New
Jersey, along with common law notions of duty embodied in our
case law.
Indeed, N.J.A.C. 13:35-6.5(f) describes our public policy
regarding the scope and extent of the duty a physician owes to a
person he or she examines at the behest of a third party in terms
that are identical to those we here adopt:
Where a third party or entity has requested
examination, or an evaluation of an examinee,
the licensee rendering those services shall
prepare appropriate records and maintain
their confidentiality, except to the extent
provided by this section. The licensee's
report to the third party relating to the
examinee shall be made part of the record.
The licensee shall:
1. Assure that the scope of the report
is consistent with the request, to avoid the
unnecessary disclosure of diagnoses or
personal information which is not pertinent;
2. Forward the report to the individual
entity making the request, in accordance with
the terms of the examinee's authorization; if
no specific individual is identified, the
report should be marked “Confidential”; and
3. Not provide the examinee with the
report of an examination requested by a third
party or entity unless the third party or
entity consents to its release, except that
should the examination disclose abnormalities
or conditions not known to the examinee, the
licensee shall advise the examinee to consult
another health care professional for
treatment.
[Ibid. (emphasis added).]
Although it is not a model of draftsmanship, that regulation of
the Board of Medical Examiners recognizes contracts like those
between EMR and Life Care that prescribe that examination results
in a pre-employment setting will generally be forwarded to the
requesting agency and not to the examinee. However, the
regulation carves out a crucial exception bearing on the case
before us. That exception requires the examining physician,
where the examination discloses “abnormalities or conditions not
known” to the examinee, to advise him or her to consult another
physician for treatment. N.J.A.C. 13:35-6.5(f)(3).
According to the Board of Medical Examiners, N.J.A.C.
13:35-6.5(f) reflects a judgment that the duty owed by an
examining physician to an individual being examined, even when
that individual is not a traditional patient, includes and
encompasses an affirmative obligation of disclosure in those
circumstances where potentially life-threatening abnormalities or
conditions are discovered during the course of examination. It
makes no difference that the examination is conducted at the
behest of a third party because an ordinary person is likely to
interpret _ and thus rely on _ a physician's silence to mean that
the physician detected no previously unknown abnormalities during
the examination.
The Board's rule is in accord with other ethical
pronouncements on the issue, including a recent opinion of the
American Medical Association's Council on Ethical and Judicial
Affairs (Council) that states:
When a physician is responsible for performing
an isolated assessment of an individual's
health or disability for an employer,
business, or insurer, a limited patient-
physician relationship should be considered to
exist. . . .
Despite their ties to a third party, the
responsibilities of [industry employed
physicians] and [independent medical
examiners] are in some basic respects very
similar to those of other physicians.
The physician has a responsibility to inform
the patient about important health information
abnormalities that he or she discovers during
the course of the examination. In addition,
the physician should ensure to the extent
possible that the patient understands the
problem or diagnosis. Furthermore, when
appropriate, the physician should suggest that
the patient seek care from a qualified
physician and, if requested, provide
reasonable assistance in securing follow-up
care.
[Council on Ethical and Judicial Affairs,
American Medical Association, Opinion E-10.03
(AMA opinion), Patient-Physician Relationship
in the Context of Work- Related and
Independent Medical Examinations, Current
Opinions, issued Dec. 1999, based on report
Patient Physician Relationship in the Context
of Work-Related and Independent Medical
Examinations, adopted June 1999 (Emphasis
added).]
Although neither N.J.A.C. 13:35-6.5(f) nor the AMA Opinion
state explicitly that a physician's duty in the described
circumstances is not delegable, that notion is implicit in their
formulation. Each recognizes contracts like the one between EMR
and Life Care, but each is careful to preserve the duty of the
physician, who discovers an abnormality, to inform the patient of
the discovery; to advise him or her to consult another health
care professional; and, in the case of the AMA opinion, to ensure
that the patient understands the problem or diagnosis and, if
requested, assist the patient in securing medical follow up.
There is nothing earth shaking about those principles.
Indeed we believe them to fall squarely within our established
jurisprudence as exemplified by the seminal decision in Beadling,
and the more extensive analysis in Ranier, and to accord with the
fundamental notions of duty embodied in our jurisprudence and in
the developing caselaw across the country.See footnote 11
Here, although Davey paid EMS, which in turn contracted with Life Care, on the day of the examination, Dr. Bojarski and Reed entered into a relationship in which Bojarski owed Reed a duty of reasonable care to the extent of the examination and in communicating its outcome. In light of the evaluative purpose of the exam, Reed concomitantly relied on Dr. Bojarski's superior knowledge to assess the state of his health. Subsumed in that reliance was an entirely reasonable belief that, if Dr. Bojarski had found a potentially life threatening abnormality, he would not have remained silent about it. Whatever else Reed 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 of that obligation.
The admission of the EMR-Life Care contract before the jury on the issue of the “reasonableness” of Dr. Bojarski's actions was reversible error. It left the jury with the clear impression that it was free to find, consonant with Dr. Bojarski's expert's opinion, that Dr. Bojarski behaved “reasonably” in delegating to EMR the duty to advise Reed of his potentially dangerous medical condition. As we have indicated, that is not so. Whatever contract Dr. Bojarski was operating under did not relieve him of the responsibility to inform Reed of his ailment.
The judgment entered upon the jury verdict is reversed. The matter is remanded for trial in advance of which the trial court should determine whether to direct a verdict in favor of plaintiff on liability.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LaVECCHIA and ZAZZALI join in JUSTICE LONG's opinion. JUSTICE VERNIERO filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A- 63 September Term 1999
LINDA REED, as Executrix of
the ESTATE OF ARNOLD S. REED,
deceased, and LINDA REED,
Individually,
Plaintiff-Appellant,
v.
MICHAEL H. BOJARSKI, D.O. and
LIFE CARE INSTITUTE, INC.,
t/a LIFE CARE MEDICAL CENTER,
Defendants-Respondents,
and
D.A. DePERSIA, M.D.,
ENVIRONMENTAL MEDICINE
RESOURCES, INC., JOHN DOE,
M.D.'s (A - Z), and JANE DOE
Corporations (A - Z),
Jointly, Severally and/or in
the alternative,
Defendants.
VERNIERO, J., concurring.
I join the Court's opinion. I interpret its holding as
imposing a duty on the physician to examine the individual
competently, within the parameters of the third-party referral,
and to disclose to that examinee any potentially serious
condition revealed by the examination. Although the Court cites
approvingly to that portion of Ranier v. Frieman,
294 N.J. Super. 182, 190 (App. Div. 1996), in which the Appellate Division
articulated that the examining physician's duty is “to make a
professionally reasonable and competent diagnosis,” ante at __
(slip op. at 24), it does so strictly in the context of an
examination requested by a third-party entity. I do not
interpret the Court's holding as imposing a duty on the examining
physician to discover or diagnose potential ailments beyond the
scope of the third-party referral.
The Court's approach resembles the approach reflected in
N.J.A.C. 13:35-6.5. That regulation provides that a licensee in
Dr. Bojarski's position must disclose to examinees any
“abnormalities or conditions” revealed by the examination and not
known to them. N.J.A.C. 13:35-6.5(f). In my view, that
provision establishes a non-delegable duty on the part of
physicians to disclose such information to persons, like Mr.
Reed, who are examined at the request of employers or other
third-party entities. Persons examined by physicians in those
circumstances have a right to be informed of any negative
results.
Moreover, N.J.A.C. 13:35-6.5(f) is careful to denote persons
who are examined in the employment-screening context as
“examinees” as opposed to “patients.” The regulation defines an
examinee as a “person who is the subject of professional
examination where the purpose of that examination is unrelated to
treatment and where a report of the examination is to be supplied
to a third party.” N.J.A.C. 13:35-6.5(a). A patient, on the
other hand, is defined as “any person who is the recipient of a
professional service . . . for purposes of treatment or a
consultation relating to treatment.” Ibid. The regulation thus
contemplates a circumscribed relationship between the examining
physician and examinee in the employment-screening context.
NO. A-63 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
LINDA REED, as Executrix of
the ESTATE OF ARNOLD S. REED,
deceased, and LINDA REED,
Individually,
Plaintiff-Appellant,
v.
MICHAEL H. BOJARSKI, D.O. and
LIFE CARE INSTITUTE, INC.,
t/a LIFE CARE MEDICAL CENTER,
Defendants-Respondents.
DECIDED January 23, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY Justice Verniero
DISSENTING OPINION BY
Footnote: 1 1Nothing in this opinion should be viewed as requiring a physician to whom a patient has been referred by an examining physician for diagnostic tests (for example, a pathologist or radiologist) to convey the test results directly to the patient.