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Malpractice Consult: Your obligations when doing pre-employment exams


Your obligations when doing pre-employment exams


Malpractice Consult

By Lee J. Johnson, JD

Your obligations when doing pre-employment exams

Q:I occasionally do pre-employment physicals. The people I examine aren't my patients, and I usually see them only once for a relatively brief visit. What is my liability if one of these people later develops cancer, for instance, and charges that I was negligent for not picking it up?

A: Until recently, your liability would have been minimal. The traditional view is that there is no physician-patient relationship in an employment or disability exam, since the doctor is hired by a third party and not by the patient seeking medical treatment. Under this view, the physician generally doesn't owe a duty of care to the employee to discover or diagnose medical conditions. Courts have held that physicians aren't liable even for failing to detect evidence of cancer or an aortic aneurysm on X-rays.

Some courts, however, recently have expanded a physician's responsibility and potential liability.

One of these new areas of exposure crops up when the physician notes an abnormality or positive finding that could lead to a diagnosis of a serious illness. Must a doctor report his findings to the examinee, or only to the employer or third party that contracted with him to conduct the exam?

The AMA's Council on Ethical and Judicial Affairs advises that a physician has a responsibility to inform the patient: "The physician should ensure that the patient understands the problem or diagnosis. 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."

Many state courts are following this line of reasoning. For example, the New Jersey Supreme Court recently held that a doctor doing a pre-employment physical has a duty to inform the patient of a serious medical condition. He cannot delegate that job to a third party.

In that case, the plaintiff was the family of a heavy-equipment operator who was required to undergo a pre-employment physical prior to working at a landfill. The employer's contract with the doctor who performed the physicals specified that he was to report any abnormalities found in the exam to the company within 24 hours. A chest X-ray revealed a widened mediastinum, a possible indicator of lymphoma, including Hodgkin's disease.

The physician never told the worker of this finding, but did report it to the company. However, he didn't discuss its potential as an indicator for serious disease, or the need for further study.

The company then told the worker that he was in good health. The man was subsequently diagnosed with Hodgkin's disease and died 18 months later at age 28.

The worker's widow sued multiple defendants, including the physician. A jury found in the doctor's favor, determining that there was no duty to the patient and that the doctor had fulfilled his obligations pursuant to his contract with the company. An appeals court agreed.

The state's high court, however, unanimously held that the physician had an obligation to inform the patient, and not just the company. Even without a traditional physician-patient relationship, "the patient is entitled to rely on the physician to tell him of a potential serious illness if it is discovered," the court wrote. "Any reasonable patient would expect that, and the duty to communicate with a patient who is found to be ill is nondelegable."

Since rulings vary around the country, check with your state medical society and malpractice insurer before agreeing to perform an independent medical examination.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.


Lee Johnson. Malpractice Consult.

Medical Economics


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