Lou Sportelli, DC, CVP's Department Head on Risk Management and Malpractice, sent this to me last week. We all need to pay close attention to what is being said regarding pre-employment physicals. Volume 10 Number 5 Thursday, February 1, 2001 ISSN 1521-5350 News - Professional Liability Page 188 New Jersey - Doctors Giving Pre-Employment Exams Must Reveal Serious Medical Conditions New Jersey physicians hired to perform pre-employment physicals owe a non-delegable duty to inform patients of potentially serious medical conditions that are discovered, the New Jersey Supreme Court ruled Jan. 23 (Reed v. Bojarski, N.J., No. A-63-99, 1/23/01). The decision reverses a judgment entered upon a jury verdict, and allows the widow of Arnold Reed, who was told following a pre- employment physical that he was in good health, to proceed with a lawsuit against Michael H. Bojarski, DO, and Life Care Institute Inc. The court held that a physician's direct communication of information about medical abnormalities to a patient provides the best chance that the patient can get prompt care, "and the best hope of avoiding falling through the cracks of a multi-party system." Reed became sick about six months after the physical and died about eight moths later, at age 28, of a condition that had been noted in the pre-employment physical, the court wrote. A heavy-equipment operator, Reed was required by Occupational Safety and Health Administration regulations to undergo a pre-employment physical in 1991, and the job of performing the examinations was contracted to Environmental Medicine Resources Inc. (EMR), of Georgia. In turn, EMR subcontracted the pre-employment examinations to Life Care, of Glassboro, N.J. Among other things, Life Care was to perform a chest X-ray and rate it as either normal or abnormal. Bojarski performed Reed's physical. A Life Care radiologist read Reed's chest X-ray and reported to Bojarski that Reed had a cavity in the center of his chest. "It is an accepted medical fact that, among men in their twenties, a widening [chest cavity] may be an indicator of lymphoma, including Hodgkin's disease," according to the decision. Th! e radiologist also noted that Reed's heart was unusually large. Court Looks to Other Jurisdictions Bojarski ranked the X-ray as abnormal and sent it, along with the results of Reed's physical, to EMR. Two days later, the radiologist gave Bojarski a written report and recommended a follow-up CT- scan for Reed, but Bojarski did not convey the information or the report to EMT, the decision said. "Inexplicably," the court wrote, an EMR physician "wrote to Reed and informed him that he was in good health," and did not inform Reed of the chest cavity. Within about six months, Reed had lost 25 pounds, had flu-like symptoms, and returned to Life Care for another examination. Bojarski did not ask Reed whether he had been told of the chest condition, the court wrote, and within about one month, Reed was hospitalized. A chest X-ray revealed a large mass in Reed's chest, and he was diagnosed with Stage IIB Hodgkin's disease and died eight months later. Reed's widow sued. Summary judgment was granted to the radiologist, and EMR settled. The case against Bojarski and Life Care went to trial, and a jury decided Bojarski had not deviated from the accepted standards of medical care. Reed's widow appealed, and an appeals court affirmed. The state's highest court granted the widow's petition for certification, and reversed. The state high court noted that jurisdictions around the country have adopted three approaches to whether a physician owes a duty when giving a pre- employment physical. The majority view is that a physician-patient r! elationship is absent during a pre-employment physical, and therefore the physician has no duty to the patient to disclose medical conditions. New Jersey Physicians Owe Duty of Care A second stance adopted by courts holds that a doctor-patient relationship is created when a physical is performed by a third party physician, but only to the extent of the examination. A third line of cases has held that, even if there is no physician- patient relationship, a physician has a duty to act with reasonable care based on common-law negligence principles. "New Jersey has long recognized that a physician owes a duty of reasonable care to the nontraditional patient in the context of a third-party examination," the court wrote. "Although the pre- employment physical clearly does not establish a traditional physician-patient relationship, that is of no moment." The key factor, the court continued, is that a relationship is established in which the physician "is expected to exercise reasonable care commensurate with his expertise and training, both in conducting the examination and communicating the results to the examinee." To the extent that a contract attempts to remove a physician from the duty to inform a patient of the discovery of serious medical conditions, those contracts violate New Jersey public policy and common law, the court wrote.