No. 303 Philadelphia 1985, Appeal from the Order of the Court of Common Pleas of Montgomery County, dated January 10, 1985, Civil at No. 83-16268.
Donald J. Martin, Norristown, for appellants.
William F. Sullivan, Jr., Philadelphia, for Gross, appellee.
Darryl J. May, Philadelphia, for United Medical, appellee.
Rowley, Del Sole and Beck, JJ.
[ 350 Pa. Super. Page 576]
This is an appeal from an Order of the Court of Common Pleas of Montgomery County granting summary judgment in favor of Appellees.
On November 27, 1981, Appellant Dorian Craddock was injured at his place of employment for which he subsequently received workmen's compensation benefits. On May 10, 1982, at the direction of employer's workman's compensation carrier, the Hartford Group, Appellant presented himself for a medical examination by Appellee, Dr. Gross, at the offices of Appellee, United Medical. Appellant's attorney was present at the examination and in the words of the trial court, "(o)utside of various instructions concerning the movement of certain limbs and other examination-related requests and replies, no discussion took place between the parties, and Dr. Gross offered no advice, diagnosis, treatment or prescriptions to Mr. Croddock." (Trial Court Opinion at 4). Appellee, Dr. Gross, submitted a report dated May 10, 1982, to the Hartford Group in which he stated, "It is my opinion that he has fully recovered from the effects of his November 21, 1981 accident." (R.R. at 139a). The Hartford Group forwarded a copy of the report to either Appellant or his attorney. Upon receipt of the report, the Hartford Group terminated the workmen's compensation claim. "Mr. Craddock apparently filed a petition of protest pursuant to the Workmen's Compensation Act, 77 P.S. § 1 et seq., but never gave any testimony before a workmen's compensation referee." (Trial Court Opinion at 5). Appellant returned to work in November 1982 on light duty, part-time basis after "both Mr. Craddock's treating physicians as well as his counsel agreed with the return." (Trial Court Opinion at 5). Appellants base their claim on the allegation that after a brief period of work, Appellant suffered a severe aggravation of his back injury.
The Appellant commenced the instant action in trespass against Dr. Gross and his employer United Medical alleging negligence in that the Appellees:
[ 350 Pa. Super. Page 577]
failed to use due care in examining the plaintiff, Dorian M. Craddock, for workmen's compensation purposes and in filing an evaluation report with the workmen's compensation carrier without noting or considering the results of certain prior medical tests allegedly performed on the plaintiff and without recognizing various symptoms allegedly suffered by Mr. Craddock at the time of the examination.
(Trial Court Opinion at 2). Appellant Annie Craddock asserted a derivative claim for lack of consortium.
Both Appellees filed motions for summary judgment alleging: no physician-patient relationship ever existed between Appellant and Appellee, Dr. Gross; the privileged nature of the evaluation report; and lack of causal connection between the examination and injury six months later.
Both motions were answered, briefed, argued and ultimately granted by the trial court. On these facts, the trial court found the absence of a duty owed to the Appellant. In the words of the trial Judge:
On these facts, Dr. Gross's only duty to use professional skill and ability in performing the examination and issuing his report ran to the party which so engaged him, the workmen's compensation carrier. While the plaintiff may have had a right to have the actual examination itself physically conducted in such a manner as not to injure him, a question not presented on the pleadings, we determine the plaintiff had no right to expect Dr. Gross ...