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Ryder v. Mitchell9/16/2002
hood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against the harm, and the consequences of placing the burden of a duty on the defendant. Martinez, 969 P.2d at 218; Greenberg, 845 P.2d at 536. Colorado law recognizes that these factors are not exclusive and allows a court to consider any other relevant factors founded on the competing individual and social interests implicated by the particular facts of the case at issue. Greenberg, 845 P.2d at 536 (quoting Perreira, 768 P.2d at 1209). Because no one factor controls the analysis, the question of whether a duty exists in a certain situation is based on "fairness under contemporary standards - that is, would reasonable persons recognize and agree that a duty of care exists." Greenberg, 845 P.2d at 536.
B.
This court has addressed cases raising the issue of whether a health care provider owes a third party a legal duty of care, albeit in different factual situations. This court first dealt with the issues surrounding the duty of a state psychiatrist to the surviving wife of a policeman shot by a mentally ill individual recently released from an involuntary commitment to a state mental health center for short-term treatment. Perreira v. Colorado, 768 P.2d 1198, 1201 (Colo. 1989). We held that when considering whether to release a patient, the state psychiatrist had a legal duty to exercise due professional care in determining whether the patient had a propensity for violence that would create an unreasonable risk of bodily harm to others. If the psychiatrist knew, or should have known, that such a danger existed, he had an obligation to take reasonable precautions to protect the public from the grave risks created by the patient's release. Id. at 1220.
Next, in Greenberg v. Perkins, 845 P.2d 530, 530-31 (Colo. 1993), we addressed a physician's duty to an examinee for alleged injuries resulting from testing procedures performed by a third party but requested by a physician pursuant to an independent medical evaluation. In that case, the examinee claimed injuries resulting from a bus accident and subsequently brought a personal injury action. Id. at 531. The defendants in the underlying suit requested an independent medical examination of the plaintiff. The independent physician examined her and then referred her for a functional capacity test. The plaintiff claimed that during the testing, she incurred additional severe injuries, and she brought suit against the independent physician alleging malpractice. We determined that the physician did owe a limited duty of care to an examinee who is not his patient to refrain from injuring the patient during the examination, including abstaining from referring the examinee for testing that would foreseeably result in injury. Id. at 533.
In Martinez v. Lewis, 969 P.2d 213, 218 (Colo. 1998), we returned to the question of the scope of the duty a physician owes to an examinee when conducting an independent medical examination at the request of a first party insurer. The examinee in that case sued the physician for professional malpractice based on his report to the insurance company that the examinee was malingering and the insurance company's subsequent decision to deny coverage for future care. Id. at 215. After weighing the factors relevant to the existence of a duty, this court concluded that the physician did not owe a duty to the examinee when formulating an unfavorable independent medical examination report upon which the insurance company relied in denying coverage. Id. at 220.
The court of appeals too has addressed the question of when a defendant health care provider owes a non-patient third pa
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