 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Almaguer v. Jenkins11/30/1999
Opinion by:Tom Rickhoff, Justice
AFFIRMED
Jeanette C. Almaguer appeals an order granting summary judgment on behalf of Douglas W. Jenkins, M.D. Almaguer sued Jenkins for medical malpractice and common law negligence alleging that he improperly examined and reported her condition to the Department of Labor. We hold that a physician does not owe a duty to an examinee whom he examines for the sole purpose of preparing a report in conjunction with an adjudication of a workers' compensation claim. We affirm the summary judgment of the trial court.
Background and Facts
Jenkins performed an examination of Almaguer at the bequest of the Department of Labor for the purpose of conducting a second opinion consultation in conjunction with the adjudication of a claim for workers' compensation. Jenkins reported to the Department of Labor that he found no evidence of rhinitis, sinusitis, cough, asthma, bronchitis or pneumonia that would be related to her alleged work exposures. He also reported to the Department of Labor that upon review of the records, he found no reasonable scientific evidence of an immune disorder, although he felt that Almaguer probably does believe she has an immune disorder. Almaguer alleges that Jenkins improperly tested and evaluated her and incorrectly reported her condition to the Department of Labor. Further, she alleges that due to his mis-diagnosis her workers' compensation was denied without medical evidence; and, she experienced time delays in receiving medical treatment and her workers' compensation benefits. She brought claims of medical malpractice, common law negligence, and gross negligence. The trial court granted summary judgment in favor of Jenkins.
Standard of Review
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant; every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549. A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).
Physician-Patient Relationship
Jenkins argues he was entitled to summary judgment because there was no physician-patient relationship and therefore he did not owe a duty to Almaguer. Almaguer argues that the duty owed to her was not solely premised upon the physician-patient relationship, but on a duty not to harm the patient. In Armstrong v. Morgan, 545 S.W.2d 45 (Tex. Civ. App.-Texarkana 1976, writ ref'd n.r.e.), a corporate employee was required to have a physical examination prior to his being promoted and the corporation employed a physician to make such examination. Id. Writing for the court, Justice Ray held that the physician had a duty not to injure him physically or otherwise. Id. at 46. If the physician negligently performed the examination and as a result gave an inaccurate report of the state of appellant's health, and appellant was injured as a proximate result thereof, actionable negligence would be shown. Id. at 46. Subsequent case law in Texas has abandoned Justice Ray's reasoning.
In Pope, the court held that an on-call physician consulted by an emergency room physician over the telephone, did not form the physic
Page 1 2 3 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|