Sexton v. Petz , 170 Mich. App. 561 ( 1988 )

170 Mich. App. 561 (1988) 428 N.W.2d 715

SEXTON
v.
PETZ

Docket No. 95614.

Michigan Court of Appeals.

Decided August 15, 1988.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. (by David K. Barnes, Jr.), for plaintiffs.

Schureman, Frakes, Glass & Wulfmeier (by Charles D. Brown), for defendant.

Before: McDONALD, P.J., and KELLY and W.F. LAVOY,^[*] JJ.

KELLY, J.

Defendant brings this interlocutory appeal from the trial court order that denied in part defendant's motion for summary disposition. Plaintiffs' complaint alleged medical malpractice, negligence, intentional infliction of emotional distress and gross negligence. Summary disposition was granted to defendant on the malpractice and intentional infliction of emotional distress claims pursuant to MCR 2.116(C)(10); there being no genuine issue of material fact, defendant was entitled to judgment as a matter of law. Defendant argues that the remaining two counts, negligence and gross negligence, should likewise have been dismissed. We agree and reverse.

Plaintiff husband was an employee of the City of Jackson Fire Department and at the time in question was the chief fire inspector. In January, 1983, he developed severe chest pains and was diagnosed as having arteriosclerotic heart disease. Consequently, a triple coronary bypass operation was performed within approximately one month of plaintiff's diagnosis.

After surgery plaintiff filed a workers' compensation claim, alleging that his disease was caused by his employment. For this reason, plaintiff was requested to submit to a physical examination. Defendant performed that examination.

Following the examination, defendant concluded that the disease was not a result of plaintiff's employment as a fire fighter. Defendant also reported that plaintiff was "physically capable of resuming employment as previously performed for the City of Jackson." Thereafter, plaintiff returned to work and on October 15, 1983, while investigating a fire, plaintiff attempted to lift a heavy object, causing his surgical scar to rupture. This action followed.

In denying defendant's motion for summary disposition on the two counts, the trial court, relying in part on Rogers v Horvath, 65 Mich. App. 644; 237 NW2d 595 (1975), stated that "a physician owes a duty to a person that he or she is examining at the request of an employer to use reasonable care in conjunction with such examination and the reporting of the results of such examination."

In Rogers, plaintiff's compensation benefits were terminated and she filed a claim for continuation with the Bureau of Workmen's Compensation. Her employer then sent plaintiff to be examined by a physician who reported to the employer and testified at a subsequent hearing that there was nothing wrong with plaintiff. Thereafter, Rogers brought an action against the doctor, alleging malpractice, fraud and libel. In regard to plaintiff's malpractice claim, the Rogers Court stated at 647:

Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship. This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person. Rather, we hold that the physician in such a case does not owe such a duty of care as will subject him to liability for malpractice.

As is evident from this quotation, the Rogers Court was not faced with deciding whether or not claims of negligence and gross negligence are available in the within situation, that is, where plaintiff brings a cause of action against a doctor who performed an examination at the request of an employer and reported to the employer that the plaintiff was able to return to work.

A similar situation was presented in MacDonald v Barbarotto, 161 Mich. App. 542; 411 NW2d 747 (1987). In MacDonald, plaintiff was disabled from employment and was required to submit to a medical examination. The examination was conducted by a chiropractor who, when asked, reported to the employer that plaintiff was not disabled and could return to work. Plaintiff then returned to work and was soon reinjured.

Plaintiff MacDonald's original complaint brought a malpractice claim against the chiropractor. Eventually this claim was changed to one for negligence and fraud.

On the issue of negligence, the MacDonald Court, at 549-550, stated:

Clearly, plaintiff alleges a breach of duty which arose out of the professional relationship between defendant, a licensed chiropractor, and plaintiff. Plaintiff in essence declares that defendant failed to properly discharge his professional duties, resulting in damage to plaintiff. Such is the key to a malpractice claim.

* * *

Plaintiff's allegations that defendant incorrectly identified plaintiff's medical condition and failed to consider the significance of plaintiff's physical symptoms indicate that defendant's negligence occurred, if at all, as a result of a failure to exercise a sufficient degree of professional skill. Thus, plaintiff's claim is based in malpractice.

Here, in alleging negligence, plaintiffs' complaint essentially claims that defendant failed to carefully and thoroughly examine plaintiff, defendant negligently failed to consider plaintiff's condition and statements by other treating physicians regarding his condition, and defendant negligently reported that plaintiff was able to return to work. In the gross negligence count, plaintiffs' complaint essentially claims that defendant was grossly negligent in examining plaintiff, considering plaintiff's statements and reporting plaintiff's condition following the examination. Plaintiffs in their brief on appeal go so far as to state that these claims arise out of defendant's examination and evaluation of plaintiff.

In Adkins v Annapolis Hospital, 116 Mich. App. 558, 564; 323 NW2d 482 (1982), quoting Cotton v Kambly, 101 Mich. App. 537, 540-541; 300 NW2d 627 (1980), lv den 411 Mich. 1033 (1981), medical malpractice was defined as

the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light of the present state of medical science.

Our reading of plaintiffs' complaint leads us to the conclusion that plaintiffs are alleging no more than that defendant failed to properly discharge his professional duties in that he did not consider the significance of plaintiff's condition in regard to the demands of plaintiff's occupation and incorrectly diagnosed plaintiff's medical condition, which resulted in plaintiffs' damages. These separate counts of negligence and gross negligence appear to be nothing more than a restatement of plaintiffs' malpractice claim. Therefore, just as it was proper for the trial court to grant summary dispostion on plaintiffs' malpractice claim based on the lack of a patient-physician relationship, the claims asserting negligence and gross negligence should likewise have been dismissed.

Reversed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.