Malpractice: Another way to get sued

June 17, 2005

If a routine employment physical or workers' comp exam reveals abnormal results, your obligation to the patient goes deeper than you might think.

You might look at routine employment physicals, insurance exams, or independent medical exams as a lucrative, low-pressure way to supplement your private practice. But if you also assume that these exams are free of malpractice risk because there's no doctor-patient relationship, you'd be wrong. Consider the following two court cases:

Gerald Blanchard, a GP in Columbia, SC, was working part time for a company called Doctors Care, which provides occupational medicine services for employers in South Carolina and eastern Tennessee. Blanchard conducted on-site physical exams for employees of Westinghouse. Working there twice a week, he saw 10 to 15 employees during each session. Most came in for routine employment physicals, or for exams to clear them to return to work after illness or surgery.

The employees typically came in for blood work first, and then saw Blanchard a week or so later for their physical. Blanchard and a full-time Westinghouse nurse would review blood test results before each exam. If the tests were abnormal, the established protocol called for Blanchard to report the results to the employees, give them a copy, and recommend that they see their own physician.

When Fuller returned for his next physical in August 1997, his PSA level was more than double the previous reading. This time, Blanchard did advise him to see his family physician. But, by then, the warning was too late. The following month, Fuller's urologist diagnosed prostate cancer, and informed him that because of its advanced stage, his treatment options were limited. He died from the cancer one year later.

Blanchard is sued for wrongful death Fuller's widow filed a malpractice suit against Blanchard in 2000, accusing him of negligence in the wrongful death of her husband. Blanchard's defense was that, as a company physician, he was immune from malpractice liability because he had no doctor-patient relationship with Fuller, and therefore no duty of care. He also argued that the trial court had no jurisdiction because this was a workers' compensation case.

The trial judge disagreed. He found that Blanchard was an independent contractor, and therefore owed Fuller a "limited" duty of care. He also ruled that since Fuller's death was not a work-related injury, it didn't qualify as a workers' compensation case, and rightfully belonged in state court. Blanchard appealed.

In March 2004, South Carolina's Court of Appeals upheld the trial judge's ruling. Regarding Blanchard's workers' compensation defense, the appellate judges declared: "In general, treating physicians, as third parties to the employer-employee relationship, do not fall within the immunity provisions of the Workers' Compensation Act, and are subject to suit."

The appellate judges saw clear evidence of Blanchard's status as an independent contractor: "Although the employer arranged for the doctor to be available on its premises . . . and provided an employee to assist the doctor as his nurse, the doctor scheduled employee visits, reviewed test results, and made his recommendations without any direct supervision from the employer."

The appellate judges also rejected Blanchard's claim that he owed Fuller no duty of care because they supposedly had no physician-patient relationship. The existence of such a relationship, the judges ruled, is a "question of fact" for the jury to decide. The appellate court therefore sent the case back for trial. But it never went to a jury because Blanchard settled last summer for an undisclosed payment.

A different state, a similar suit In another case involving similar legal issues, Christine Stanley, a registered nurse, underwent a chest X-ray as part of a pre-employment physical for her job at a Phoenix nursing home. The X-ray was performed by a radiology service that made visits to the nursing home, and was interpreted by Robert McCarver Jr., an independent radiologist retained by the service.