Arizona extends doctors' legal duty.

In a case of first impression, the Arizona Supreme Court has ruled that a radiologist who examined an X-ray as part of a preemployment screening owed a duty of care to the patient to report abnormalities he found, even though he was not her treating physician and had never seen her. (Stanley v. McCarver, 92 P.3d 849 (Ariz. 2004).)

Justice Rebecca White Berch wrote for the majority that the supreme court ruling is part of a "trend" seen in a few other states, including Maryland and Ohio, where "public policy is better served by imposing a duty, in such circumstances to help prevent future harm, even in the absence of a traditional doctor-patient relationship."

When nurse Christine Stanley was hired by a nursing home, her routine preemployment screening for tuberculosis included a chest X-ray. The nursing home hired an X-ray company, which in turn hired Dr. Robert McCarver Jr., who examined Stanley's chest X-ray. In his report to the nursing home, he noted spots on her X-ray and did not rule out tuberculosis. Although the nursing home was required to notify Stanley of the test results, it did not do so, and Stanley went to work.

About 10 months later, she was diagnosed with lung cancer, and she obtained the X-ray McCarver had examined. Because it showed the cancer, Stanley sued McCarver, the company that hired him to read the X-ray, and her employer because of the time lost in treating her illness. She died of the disease in April 2004.

The nursing home declared bankruptcy and was dismissed from the case. The Maricopa County Superior Court dismissed the X-ray company and granted summary judgment for McCarver, but the Arizona Court of Appeals reversed that ruling, finding that McCarver had not only a duty of care to Stanley, but also a duty to report the X-ray results directly to her.

Writing for the state supreme court majority, with the chief justice dissenting, Berch affirmed the doctor's duty of care. But the judge declined "to find a duty to report directly to the patient based upon the medical profession's ethical standards because such a notion conflates the existence of a duty with the standard of care."

Whether a doctor reports directly to the patient, she wrote, depends on several factors, including whether "a treating or referring physician [is] involved in the transaction, whether the radiologist has means to identify and locate the patient, [and] the scope of including ally contractual limitations on--the radiologist's undertaking."

"We do not opine that Dr. McCarver has breached any duty," the judge concluded. "Rather, that issue is remanded to the jury for determination. We hold only that a doctor who, for consideration, undertakes to read X-rays, on which he observes serious abnormalities, must act reasonably in reading the X-rays and reporting the results."

Stanley's attorney, Karen Lugosi of Phoenix, disagreed with critics' allegation that the decision could result in future litigation over the liability of anyone performing medical screens.

"When physicians performing independent, preemployment evaluations stumble onto something that is potentially life-threatening, it's a no-brainer for them to notify," she said.

"I think it's a sensible position the court took, because any reasonable person would expect a physician who has superior knowledge about a serious or life-threatening condition to inform them of it. Likewise, the physician who is aware would also convey that information just on instinct and common sense."

That said, different people will interpret the ruling differently, she noted.

Some people "are going to conclude that in all circumstances where there is a preemployment physical, the physician has a duty to inform of a potentially life-threatening circumstance. But I think other people will interpret it more loosely. The more general conclusion is that the lack of a doctor-patient relationship does not preclude a duty," Lugosi said.

At press time, Stanley's family was weighing whether to go ahead with a wrongful death lawsuit.