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Martinez v. Lewis11/29/1996
231 (Tex. Civ. App. 1992)(refusing to extend a duty to inform a noninquiring examinee of the doctor's findings from physician to a nonpatient examinee).
We agree with the reasoning of these cases and adopt the same principle here.
B.
Plaintiff relies on Greenberg v. Perkins, supra, which held that a physician owes a duty to a nonpatient examinee to conduct the examination in such a manner so as not to cause harm to that person, as dispositive of the issue of duty. We disagree.
Here, plaintiff contends that her injury resulted from denied and delayed treatment. She stated in her deposition that she was not physically injured while undergoing examinations by Lewis. Under these circumstances, since no doctor-patient relationship existed between plaintiff and Lewis, since she does not assert injury during the course of the examination, and since she did not rely on Lewis for treatment, care, or advice, we hold that Lewis is not liable to plaintiff for professional negligence. The doctor's duty to use reasonable care in making and preparing the report runs to the party requesting it; here, that was State Farm, not plaintiff. See Greenberg v. Perkins, supra.
C.
Plaintiff nevertheless claims that her injury arises from the denial of her benefits by the insurance company. She claims that Lewis knew the purpose for which his report would be used, and because of his allegedly erroneous review of her psychological health and the subsequent denial of benefits, it was over 16 months before she was able to receive treatment for her injuries.
However, both in Colorado, see Greenberg v. Perkins, supra, and in other jurisdictions, no liability has been found for harm allegedly resulting from a denial of benefits, see LoDico v. Caputi, 517 N.Y.S.2d 640 (N.Y. App. Div. 1987) (plaintiff made no claim that he suffered bodily injury during the course of his physical examination); Johnston v. Sibley, 558 S.W.2d 135 (Tex. Civ. App. 1977)(plaintiff made no contention that he suffered bodily injury), or from denial of other economic interest, see Felton v. Schaeffer, 229 Cal. App. 3d 229, 279 Cal. Rptr. 713 (1991)(discussing that an actionable injury is physical injury, not mere economic injury). But see Armstrong v. Morgan, 545 S.W.2d 45 (Tex. Civ. App. 1977)(in action alleging loss of job , position, and benefits, actionable negligence would be shown if doctor gave inaccurate report and appellant was injured as result).
Nor does Montoya v. Bebensee, 761 P.2d 285 (Colo. App. 1988), upon which plaintiff also relies, settle the issue in this case. In Montoya, a psychologist's associate made an inaccurate report to county officials and others that the plaintiff father had sexually abused his daughter. A division of this court concluded that a "mental health care provider owes a duty to any person, who is the subject of any public report or other adverse recommendation by that provider, to use due care in formulating any opinion upon which such report or recommendation is based." Montoya v. Bebensee, supra, 761 P.2d at 289. Even though in that case the health care provider did not physically injure the plaintiff, the court concluded that the plaintiff could recover against the health care provider. The court arrived at this Conclusion "after considering both the great social utility of having therapists make reports of suspected child abuse and the significant risk of substantial injury that may occur to one who is falsely accused of being a child abuser." Montoya v. Bebensee, supra, 761 P.2d at 288.
However, Montoya is distinguishable in that the mental health care
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