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Reed v. Bojarski

January 23, 2001


The opinion of the court was delivered by: Long, J.

Argued October 23, 2000

On certification to the Superior Court, Appellate Division.

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.


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.


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 ...

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