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

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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