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DONNA C. ERVIN AND DONNA C. ERVIN v. AMERICAN GUARDIAN LIFE ASSURANCE COMPANY AND NORMAN S. KNEE (07/29/88)

filed: July 29, 1988.

DONNA C. ERVIN AND DONNA C. ERVIN, EXECUTRIX OF THE ESTATE OF THOMAS J. ERVIN, DECEASED, APPELLANT,
v.
AMERICAN GUARDIAN LIFE ASSURANCE COMPANY AND NORMAN S. KNEE, D.O., APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4734 February Term, 1987.

COUNSEL

Timothy J. Savage, Philadelphia, for appellant.

Edward C. Mintzer, Jr., Philadelphia, for Knee, appellee.

Cavanaugh, Wieand and Del Sole, JJ.

Author: Wieand

[ 376 Pa. Super. Page 133]

In this appeal from an order sustaining preliminary objections in the nature of a demurrer and entering judgment for the defendant physician, the sole issue is whether the physician who, at the request of the insurance company which employed him, examined the electrocardiogram (EKG) of an applicant for insurance, owed a duty to the applicant to discover and disclose heart abnormalities recorded by the electrocardiogram. For reasons hereinafter stated, we agree with the trial court that in the absence of a physician-patient relationship or other basis for imposing upon the physician a duty to the applicant, there can be no recovery by the applicant for the physician's failure to discover or disclose such an abnormality to the applicant. Therefore, we affirm.

In reviewing the trial court's order sustaining preliminary objections in the nature of a demurrer, we accept as true all material facts alleged in the complaint, as well as inferences reasonably deducible therefrom. Gentile v. West American Insurance Exchange, 367 Pa. Super. 99, 104-105, 532 A.2d 472, 475 (1987). See also: Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986). Moreover,

[i]n determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa. Super. 216, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees' Retirement Board, 505 Pa. 294, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

[ 376 Pa. Super. Page 134]

    physician, and no inferences can anywhere be drawn from the Complaint that a physician-patient relationship ever existed between Defendant Dr. Knee and the deceased.

The trial court also relied upon this Court's decision in Craddock v. Gross, 350 Pa. Super. 575, 504 A.2d 1300 (1986), where we held that a physician who had examined a workmen's compensation claimant on behalf of a compensation insurance carrier did not owe to the claimant a duty which would support a medical malpractice action. Other jurisdictions have reached the same conclusion. See, e.g.: Cook v. Optimum/Ideal Managers, Inc., 130 Ill.App.3d 180, 84 Ill.Dec. 933, 473 N.E.2d 334 (1984); Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3 (1977); Johnston v. Sibley, 558 S.W.2d 135 (Tex.Civ.App.1977); Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 (1975); LoDico v. Caputi, 129 A.D.2d 361, 517 N.Y.S.2d 640 (1987). The Michigan court in Rogers v. Horvath, supra, explained the reason for the rule as follows:

The principal question raised by this appeal is whether a professional physician-patient relationship is a legal prerequisite to basing a cause of action in professional malpractice against a physician.

The term "malpractice" denotes a breach of the duty owed by one in rendering professional services to a person who has contracted for such services; in physicianmalpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar. Defendant was employed by General Motors to examine one of its employees in preparation for a workmen's compensation hearing. Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a ...


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