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HomeMy WebLinkAbout96-1705 CivilROBERT E. DELL and GWEN E. DELL, his wife, Plaintiffs Ve GORDON MYERS, M.D., NAGIB KHALIFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.C., WILLIAM HAREN, M.D., and WILLIAM MILROTH, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-1705 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT GORDON MYERS, M.D. BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this ~day of February, 1998, after careful consideration of the motion for summary judgment filed on behalf of Defendant Gordon Myers, M.D., and for the reasons stated in the accompanying opinion, Defendant's motion for summary judgment is granted and Plaintiffs' complaint is dismissed as to Defendant Gordon Myers, M.D. Robin J. Marzella, Esq. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs BY THE COURT, G. Thomas Miller, Esq. 105 Locust Street P.O. Box 709 Harrisburg, PA 17108-0709 Attorney for Defendant Gordon Myers, M.D. James W. Saxton, Esq. Katherine B. Kravitz, Esq. 126 East King Street Lancaster, PA 17602-2893 Attorneys for Defendant Nagib Khalifa, M.D., Urology Associates of Chambersburg, P.C., and William Haren, M.D. Joseph P. Hafer, Esq. Gary T. Lathrop, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant William Milroth, M.D. :rc ROBERT E. DELL and GWEN E. DELL, his wife, Plaintiffs Ve GORDON MYERS, M.D., NAGIB KHALIFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.C., WILLIAM HAREN, M.D., and WILLIAM MILROTH, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-1705 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT GORDON MYERS, M.D. BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, J., February 24, 1998. This medical malpractice case arises out of alleged negligence in the diagnosis and treatment of prostate cancer in Plaintiff Robert E. Dell. For disposition at this time is a motion for summary judgment filed on behalf of Defendant Gordon Myers, M.D. For the reasons stated in this opinion, Defendant's motion for summary judgment will be granted. STATEMENT OF FACTS The facts alleged in Plaintiffs' complaint pertinent to the present motion may be summarized as follows. A biopsy performed in September of 1994 revealed that Plaintiff Robert E. Dell was suffering from prostate cancer. On November 30, 1994, he underwent a radical prostatectomy. As a result of the surgery, he has experienced incontinence and impotence. Prior to the diagnosis of cancer in 1994, Plaintiff had been medically examined by Defendant Myers on three occasions: July 26, NO. 96-1705 CIVIL TERM 1989; July 10, 1991; and June 30, 1993. On the first occasion, Defendant Myers "advised Mr. Dell that he was healthy and need not return for [a] repeat physical examination for [a] two-year period"; on each occasion, Defendant Myers "discharged Mr. Dell with a clean bill of health." According to the complaint, Defendant Myers was negligent with respect to these examinations. Defendant's negligence was said to include a failure to properly conduct the examinations, a failure to properly diagnose Plaintiff's condition, a failure to order or recommend certain tests, a failure to refer Plaintiff to a urologist, etc. The answer of Defendant Myers to the complaint denied that he had "advised Plaintiff he was 'healthy' or that he advised Plaintiff of any diagnosis." It denied that he had told Plaintiff he had a "clean bill of health." It denied that he had "directed or 'advised' Plaintiff that he need not return for two years." It denied that he had been negligent or that there was any appearance of prostate disease during the examinations. And, most significantly for present purposes, it averred in new matter as follows: At all times relevant to this cause of action, Plaintiff Robert E. Dell was examined by Defendant Gordon Myers, M.D. at the request and direction of Plaintiff's employer, Roadway Express, Inc., to determine if Plaintiff was physically qualified to operate Roadway's three-axle trucks, as required by 49 C.F.R. NO. 96-1705 CIVIL TERM ~391.41-391.49 and Roadway's physical examination standards. Plaintiff's reply did not refute this allegation.~ Defendant Myers has filed a motion for summary judgment based upon the proposition that, in his capacity as a physician acting on behalf of an employer in examining an employee or potential employee for purposes of determining fitness for employment or continued employment, he did not assume the duty asserted to the person being examined. The pre-trial evidentiary record with respect to the relationship between Defendant, Plaintiff's employer and Plaintiff consists of a deposition of Plaintiff and answers to requests propounded by Defendant for admissions. The deposition of Plaintiff confirmed that the examinations conducted by Defendant Myers were at the instance and expense of Plaintiff's employer, and were for the purpose of determining his fitness for employment or continued employment. Nowhere in the deposition does Plaintiff suggest that Defendant Myers told him that he was healthy, that he did not need another physical Plaintiff's reply stated as follows: Admitted in part. It is admitted that Robert Dell was examined by Defendant Gordon Myers, M.D. at the request of Roadway Express, Inc. It is denied that Plaintiff has any specific knowledge as to why the requests were made. Moreover, the allegations herein contain conclusions of law to which no response is necessary. 3 NO. 96-1705 CIVIL TERM examination for two years, or that he was being given a clean bill of health. The admissions of the Plaintiffs present the following factual background with respect to the case against Defendant Myers: Plaintiff Robert E. Dell completed an application for employment with Roadway Express, Inc. on July 8, 1995 .... As consideration for being considered for employment and/or being employed, Plaintiff Robert E. Dell agreed to submit to physical examinations and tests as required by the company, and Plaintiff released and assigned to his employer Roadway Express, Inc. all right, title and interest that he might subsequently acquire in all records and reports arising out of or in connection with the examinations and tests and further, Plaintiff Robert E. Dell, waived all rights to be advised of the content of the records and reports or to receive copies thereof, absent prior written consent of Roadway Express, Inc .... Prior to the physical examinations and tests performed by Defendant Gordon Myers, M.D., Plaintiff Robert E. Dell did not obtain written consent from Roadway Express, Inc. to be advised of the content of said records and reports or to receive copies thereof. Plaintiff Robert E. Dell was subsequently hired as a road driver for full time, regular employment by Roadway Express, Inc., on September 23, 1985. As a road driver, Plaintiff is required by Federal motor carrier safety regulations to submit himself for periodic or "recurrent" physical examination every two years. As a road driver Plaintiff is required by his employer, Roadway Express, Inc. to submit himself for periodic or "recurrent" physical examination every two years. All recurrent physical examination scheduling ... was performed by Roadway Express, Inc. All NO. 96-1705 CIVIL TERM recurrent physical examination fees ... were paid by Plaintiff Dell's employer, Roadway Express, Inc. Plaintiff Robert E. Dell was never examined, treated, or diagnosed regarding any physical ailment or condition by Gordon Myers, M.D., prior to July 26, 1985. The only contact Plaintiff Robert E. Dell has ever had with Defendant Gordon Myers, M.D., was during the three physical examinations Defendant Myers performed at the direction of Plaintiff's employer, Roadway Express, Inc., on July 26, 1989, July 10, 1991, and June 30, 1993. Plaintiff Robert E. Dell never sought or received medical advice or treatment from Defendant Gordon Myers, M.D. prior or subsequent to the three above-referenced physical examinations. Each of the three physical examinations referenced ... above... were scheduled and paid for by Roadway Express, Inc. Plaintiff Robert E. Dell never paid for any portion' of these three above- referenced physical examinations. Pursuant to the scheduling of the above- referenced recurrent physical examinations, Plaintiff was provided with a medical authorization/consent and release form by his employer Roadway Express, Inc. Pursuant to the scheduling of the above-referenced recurrent physical examination, Plaintiff was required, as a condition of his employment to sign a consent and release form regarding the provision and testing of a urine specimen .... Pursuant to [the] said authorization/con- sent, Robert E. Dell consented, prior to each examination, to provide a urine specimen for testing at a laboratory selected by Roadway Express, Inc. Pursuant to the above- referenced medical authorization, Plaintiff Robert E. Dell was required to take with him to the examinations performed by Gordon Myers, M.D., a driver's license or other photo identification. NO. 96-1705 CIVIL TERM At the time of or shortly following each such examination, Gordon Myers, M.D., prepared a physical examination report, which contained the results of the examination performed by Gordon Myers, M.D. and which was provided to Roadway Express, Inc .... Plaintiff was not provided with a copy of the physical examination report directly by Gordon Myers, M.D., subsequent to the examinations. Gordon Myers, M.D. did not [diagnose any condition of prostate cancer during his examinations.] .... Plaintiff Robert E. Dell had no contact or communication with Defendant Myers except upon the occasions of his physical examinations on July 26, 1989, July 10, 1991, and June 30, 1993. DISCUSSION A motion for summary judgment is governed by the following rule of civil procedure in Pennsylvania: RULE 1035.2 MOTION After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. NO. 96-1705 CIVIL TERM "Under subparagraph (2) [of the rule], the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury .... To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essential to the cause of action or defense." Committee Note, Pa. R.C.P. 1035.2 (emphasis added). The purpose of this portion of the rule is obviously to protect a party against whom an essential allegation cannot be supported with evidence from the burden of going to trial in order to secure a resolution of the matter. See Eaddy v. Hamaty, Pa. Super. , , 694 A.2d 639, 643 (1997). With respect to professional negligence in the form of medical malpractice, it has been said that "'[t]he term "malpractice" denotes a breach of the duty owed by one in rendering professional services to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship.'" Ervin v. American Guardian Life Assurance Co., 376 Pa. Super. 132, 135, 545 A.2d 354, 356, (1988), appeal denied, 522 Pa. 604, 562 A.2d 826 (1989), quoting Rogers v. Horvath, 65 Mich. App. 644, 646-47, 237 N.W.2d 595, 596-97 (1975). The general rule as to medical malpractice in the present context has been stated by the Pennsylvania Superior Court as follows: NO. 96-1705 CIVIL TERM "The general rule is that a physician who is retained by a third party to conduct an examination of another person and report the results to the third party does not enter into a physician-patient relationship with the examinee and is not liable to the examinee for any losses he suffers as a result of the conclusions the physician reaches or reports." Ervin v. American Guardian Life Assurance Co., 376 Pa. Super. 132, 136, 545 A.2d 354, 357 (1988), quoting Richard J. Kohlman, Existence of Physician and Patient Relationship, 46 Am. Jur. Proof of Facts 2d 373, 384 (1986), appeal denied, 522 Pa. 604, 562 A.2d 826 (1989), Thus, in Tomko v. Marks, 412 Pa. Super. 54, 602 A.2d 890 (1992), the Pennsylvania Superior Court affirmed the grant of summary judgment in favor of a radiologist who allegedly misread chest x-rays of a plaintiff who had been subjected to a pre- employment physical examination at the instance of a potential employer. In Tomko, Judge Olszewski made the following observation: This Court has faced the question at bar in the past. Elia v. Erie Insurance Exchange, 398 Pa. Super. 433, 581 A.2d 209 (1990) (insurer requested medical examination); Ervin v. American Guardian Life Assurance Co., 376 Pa. Super. 132, 545 A.2d 354 (1988), appeal denied, 522 Pa. 604, 562 A.2d 826 (1989) (insurer requested medical exam); Craddock v. Gross, 350 Pa. Super. 575, 504 A.2d 1300 (1986) (employer's worker's compensation carrier requested exam). In these cases, like the one at bar, a third party sponsored a medical examination of a person, and the patient later alleged negligence for some omission on the part of the physician. This Court found in NO. 96-1705 CIVIL TERM the past, as we do today, that the plaintiffs in these cases could not succeed on a cause of action in negligence .... In cases like the one at bar, this Court has not found a relationship sufficient to support the existence of a duty owed the patient. Tomko v. Marks, 412 Pa. Super. 54, 57-58, 602 A.2d 890, 892 (1992) (per Olszewski, J., with Cavanaugh and McEwen, JJ., concurring in result). Although Plaintiffs' counsel suggests in her brief in opposition to the present motion for summary judgment that the traditional view requiring privity between physician and patient for a duty to arise in such cases "is being gradually eroded,"2 appellate authority in Pennsylvania would not warrant this court's deviation from the traditional view. See generally, Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1944) (Hand, J., dissenting) (noting the inadvisability of lower court's assumption of opportunity of anticipating new doctrine), rev'd, 323 U.S. 101, 2 Plaintiffs' Brief in Opposition to Defendant Myers' Motion for Summary Judgment, at 3. NO. 96-1705 CIVIL TERM 65 S. Ct. 152, 89 L. Ed. 101 (1944).3 Based upon the foregoing authority, the evidence does not show a relationship between the Plaintiff and the moving Defendant sufficient to support the existence of a duty to Plaintiff as asserted, and the motion for summary judgment of Defendant Gordon 3 Plaintiffs suggest that the present case can be encompassed by the rule set forth in Section 324A of the Restatement (Second) of Torts (1965), which provides as follows: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Although Plaintiffs' counsel states in her brief on Defendant's motion that "Defendant Myers verbally advised Mr. Dell that he was in good health, requiring no additional medical tests or treatment," the court, as noted in the text of this opinion, has been unable to find corroboration for this assertion in the evidentiary record. See Plaintiffs Brief in Opposition to Defendant Myers' Motion for Summary Judgment, at 5. Even had Mr. Dell been provided with copies of Defendant's reports to his employer, appellate authority in Pennsylvania does not support the proposition that a cause of action would exist against the examining physician. See Tomko v. Marks, 412 Pa. Super. 54, 57, 602 A.2d 890, 891 (1992) (per Olszewski, J., with Cavanaugh and McEwen, JJ., concurring in result). 10 NO. 96-1705 CIVIL TERM Myers must be sustained. entered: The following order will therefore be ORDER OF COURT AND NOW, this 24th day of February, 1998, after careful consideration of the motion for summary judgment filed on behalf of Defendant Gordon Myers, M.D., and for the reasons stated in the accompanying opinion, Defendant's motion for summary judgment is granted and Plaintiffs' complaint is dismissed as to Defendant Gordon Myers, M.D. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Robin J. Marzella, Esq. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs G. Thomas Miller, Esq. 105 Locust Street P.O. Box 709 Harrisburg, PA 17108-0709 Attorney for Defendant Gordon Myers, M.D. James W. Saxton, Esq. Katherine B. Kravitz, Esq. 126 East King Street Lancaster, PA 17602-2893 Attorneys for Defendant Nagib Khalifa, M.D., Urology Associates of Chambersburg, P.C., and William Haren, M.D. 11 NO. 96-1705 CIVIL TERM Joseph P. Hafer, Esq. Gary T. Lathrop, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorneys for Defendant William Milroth, M.D. 12