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Keywords

lawsuitdefendantlitigationnegligenceappealduty of care
jurisdictionwillsustainedduty of care

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Greenberg v. Perkins, 845 P.2d 530

Facts

In May 1985, Carolyn Perkins was injured in a shuttle bus accident, leading to a personal injury lawsuit. During this litigation, the defendants' counsel requested an independent medical examination by Dr. Greenberg, who examined Perkins and referred her for a functional capacity evaluation. Despite knowing Perkins had a history of back problems, Greenberg ordered tests that ultimately aggravated her condition, resulting in further injury and surgery. Perkins claimed negligence against Greenberg for this referral.

In May of 1985, Perkins was a passenger in a shuttle bus at Stapleton International Airport and sustained injuries to her cervical spine when the bus struck a stop sign … Perkins based her action against Greenberg on allegations that he was negligent in referring her for the evaluation.

Issue

Did Dr. Greenberg owe Carolyn Perkins a duty of care when he referred her for a functional capacity evaluation, despite the absence of a physician-patient relationship?

This dispute raises the question of whether David C. Greenberg, M.D. (Greenberg), owed Carolyn L. Perkins (Perkins) any duty of care when he conducted an independent medical examination of her …

Rule

A physician conducting an independent medical examination owes a duty of care to the examinee to act with reasonable care and not to cause harm, even in the absence of a physician-patient relationship.

We conclude that the rationale of the cases from other jurisdictions as well as the analysis set forth in our own duty cases support a holding that a physician who conducts an independent medical examination owes a duty of care to an examinee not to refer her for testing of a type that foreseeably will result in injury based on information known to the physician.

Analysis

The court determined that Dr. Greenberg had a duty to act with reasonable care in referring Perkins for the functional capacity evaluation, given his knowledge of her medical history and the foreseeable risk of injury from the tests. The court emphasized that the nature of the tests and Perkins' prior surgeries created a significant risk, and Greenberg's actions in referring her for the evaluation constituted an affirmative act that imposed a duty of care.

We therefore find Perkins' contention that a duty existed supported by the authorities recognizing that a physician owes a duty to a nonpatient examinee to conduct the examination in such a manner as not to cause harm to that person.

Conclusion

The Supreme Court affirmed the Court of Appeals' decision, holding that Dr. Greenberg owed a duty of care to Perkins and that the absence of a physician-patient relationship did not preclude this duty.

We are satisfied that the sum total of the above considerations supports our conclusion that Greenberg owed to Perkins a duty to act with reasonable care so as not to cause her injury by referring her for testing of a type that foreseeably would result in injury.

Who won?

Carolyn L. Perkins prevailed in the case because the court recognized that Dr. Greenberg had a duty to exercise reasonable care in his referral, which he failed to do, leading to Perkins' injury.

Perkins contends that the functional capacity evaluation was part of Greenberg's independent medical examination and that, under the foregoing authorities, Greenberg owed to her a duty of care in prescribing the evaluation not to request the performance of physical activities that foreseeably would cause her harm.

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