Employer Fails To Notify Employee of Abnormal Lung Mass-Employee Died of Lung Cancer-Case Dismissed
On July 6, 2018 an appellate court covering part of upstate New York held that an employer cannot be held liable for failing to notify an employee of the (life threatening) results of a chest x-ray taken periodically in connection with his employment. The decedent was a Class 1 gas fitter who was employed by New York State Electric and Gas Corp. (NYSEG). There are federal regulations (OSHA) that require some employers to arrange periodic medical examinations of their employees who are exposed to occupationally induced disease. The decedent went to a hospital for a chest x-ray (to screen for asbestos exposure) and the radiologist correctly reported that the employee had a 4x3 cm suspicious mass in his lung and recommended a CAT scan. This report was sent only to the employer NYSEG. Unfortunately, once NYSEG decided that the lung mass was not work related, they did not notify their employee of the result. Sometime long thereafter, the employee learned of the result, but by then his cancer was too advanced for treatment and he died of metastatic lung cancer. His death occurred exactly 4 years after his employer received the suspicious x-ray report.
Suit was filed against the employer, hospital and radiologist. The malpractice claim was dismissed for two separate reasons: 1) there was no physician-patient relationship because the employer hired the hospital/radiologist to perform the exams; 2) failure to relay the results of a test is not malpractice but simple ordinary negligence. The Court reasoned that the employee signed a consent form prior to the chest x-ray acknowledging that the exam was for employment purposes only, that the exam would not "replace the medical care provided by my own personal physician" and was not "intended to detect all underlying health conditions." The negligence claim against both the employer and hospital/radiologist was dismissed finding that NONE of them had a legal duty to tell the employee he had a life threatening condition. The Court strained to explain that there was no proof the medical defendant's had the name of the employee's primary care physician. The Court noted the consent form was crystal clear and put the employee on notice that no one would have the common decency to warn the employee to go for a CAT scan which might save his life. The Court stated: "A critical concern underlying this reluctance (to expand a doctor's duty of care) is the danger that a recognition of a duty would render doctors liable to a prohibitive number of possible plaintiffs."
One of the Justice's on the appellate panel disagreed and pointed to a Court of Appeals (highest appellate court) decision in Davis v South Nassau Communities Hospital, where a hospital/physician was found to owe a duty to of care to a motorist of a bus who was struck by a car that crossed over a double yellow line. The negligent driver had been discharged from the hospital under the influence of medications that were likely to effect her driving. This very thoughtful and wise dissenting Justice explained: "that a physician who examines a person and becomes aware of a potentially deadly condition in that person has a duty to make at least minimal efforts to notify that fellow human being of such condition." Kingsley v Price, 2018 WL 3321497
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