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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Radecki (8/27/2010) sp-6505
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| TERRY L. SMITH, | ) |
| ) Supreme Court No. S- 13171 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-06- 02657 CI | |
| v. | ) |
| ) O P I N I O N | |
| PATRICK L. RADECKI, M.D., | ) |
| ) No. 6505 August 27, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Michael A. MacDonald, Judge.
Appearances: Terry L. Smith, pro se,
Fairbanks, Appellant. Howard A. Lazar and
Kendra E. Bowman, Delaney Wiles, Inc.,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Terry Smith injured his back while working for CSK
Auto, Inc. (CSK) and brought a workers compensation claim. CSK
arranged for Dr. Patrick Radecki to perform an independent
medical examination to assess Smiths condition. Dr. Radecki
examined Smith and reported that he had no physical injury
resulting from the incident. But Smith later underwent an MRI
which revealed several spinal problems, including a Tarlov cyst.
Smith filed suit against Dr. Radecki. His complaint included
claims arising from Dr. Radeckis alleged failure to discover the
existence of the cyst and Smiths earlier failed back surgery. In
the alternative, Smith alleged that Dr. Radecki did discover his
true back condition but failed to report it. The superior court
granted Dr. Radeckis motion for summary judgment, ruling that
Dr. Radecki and Smith did not have the requisite physician-
patient relationship upon which to base a medical malpractice
claim, and that Smiths claims were barred by the statute of
limitations. Because we conclude that all of Smiths claims were
dependent upon him having a physician-patient relationship with
Dr. Radecki, and Smith did not have a physician-patient
relationship with Dr. Radecki, we affirm the superior courts
ruling. We do not reach the statute of limitations issue.
II. FACTS AND PROCEEDINGS
On March 29, 2001, Terry Smith injured his back while
working as a delivery driver for CSK. Unloading cases of
antifreeze from the bed of his truck, Smith lifted and twisted to
remove two cases that were strapped together and immediately
experienced pain in his back and leg that took his breath away.
Smith sought medical attention the next day and was treated for
acute muscle strain. He received temporary total disability
benefits from March 30, 2001, through April 13, 2001.
When Smiths pain did not improve, additional
assessments were performed which revealed abnormalities at L5 and
possible degenerative disc disease at L4-5. He underwent a
variety of treatments including medication, physical therapy,
participation in a work hardening program, and epidural steroid
injection.1 Smith was given some authorized time loss from work
and then deemed partially disabled effective May 14, 2001. He
returned to work in a light duty capacity from May 14 through
July 8, 2001, but he continued to report symptoms including
weakness, dizziness, disorientation, loss of consciousness, and
pain. Smith began to miss work again and received additional
temporary total disability benefits. But on August 14, 2001,
Dr. Susan Klimow found Smith medically stable.2 Later that month
Smiths treating doctors began to consider the possibility of
psychological factors in his continuing complaints of pain, but
physical interventions for his symptoms continued into 2003.3
CSK arranged for Dr. Patrick Radecki to perform an
independent medical examination (IME) of Smith on July 25, 2003.
Dr. Radeckis report states that prior to conducting the
examination he informed Smith (1) that the purpose of the
examination was to address specific injuries or conditions, as
outlined by [CSKs insurance carrier], (2) that the IME was not a
substitute for his/her personal physician(s) or health care, and
(3) that [n]o physician/patient relationship exists or is sought.
Smith did not dispute that he received this statement describing
the scope of Dr. Radeckis engagement.
The report Dr. Radecki prepared reflects his
conclusion that Smith suffered from [m]ild degenerative disc
disease in his lumbar spine, including minimal disc bulge which
[was] not . . . symptomatic, and exhibited nonphysiologic pain
behavior and multiple nonphysiologic responses to physical
maneuvers . . . that should not cause pain, typical of
psychogenic pain disorder, severe in nature. In his report
Dr. Radecki stated that there is no objective evidence of
permanent partial impairment that can be said to have been caused
by the March 29, 2001, incident, advised against further physical
or pharmacological interventions, and suggested psychological
treatment and weight loss.
Smith again reported severe pain symptoms during
subsequent vocational rehabilitation and underwent an MRI at
Fairbanks Memorial Hospital on November 8, 2004. The MRI
revealed disc desiccation at the L5-S1, L4-L5, and L3-L4 levels,
displacement of the left S1 nerve root, L5 limbus vertebra, and a
small sacral Tarlov cyst.4
On December 17, 2004, Smith filed a workers
compensation claim for ongoing medical bills and temporary total
disability during recovery from anticipated back surgery. The
claim alleged that the anticipated surgery would address pain
arising from Smiths 2001 work-related injury. CSK controverted
the claim, relying principally upon Dr. Radeckis conclusions
that: (1) Smith was medically stable as of July of 2003; (2)
Smith had no permanent impairment resulting from the 2001 injury;
and (3) Smith did not require further medical treatment.
Smith filed suit against Dr. Radecki in the superior
court in October 2006. His complaint included 18 claims that we
group into three categories: (1) claims arising from Dr. Radeckis
alleged failure to discover and properly treat his back
condition;5 (2) claims associated with the alternative theory
that Dr. Radecki did discover the nature of Smiths back condition
but did not report these findings to Smith;6 and (3) claims that
are actually prayers for relief when read in context.7
Dr. Radecki moved for summary judgment on the grounds
that Smiths claims were: (1) barred by the statute of
limitations; and (2) precluded by the lack of a physician-patient
relationship and corresponding duty of care. Dr. Radecki asked
the superior court to construe each of plaintiffs allegations as
sounding in medical malpractice and argued that for plaintiff to
succeed on any of [his] claims, there must have been a
physician/patient relationship. Smiths opposition to the motion
did not respond to the contention that Smiths claims should be
treated as a malpractice allegation, but it did reiterate Smiths
entire list of claims.
The superior court granted summary judgment, ruling
that Dr. Radecki did not owe Smith a duty of care and that the
statute of limitations barred his claims. The courts order did
not distinguish between Smiths claims, impliedly treating them
all as variously-stated claims for medical malpractice. Smith
moved for reconsideration of the order granting summary judgment,
but the superior court denied his motion and entered final
judgment in favor of Dr. Radecki. Smith appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo,
affirming if the record presents no genuine issue of material
fact and if the movant is entitled to judgment as a matter of
law. All reasonable inferences are drawn in favor of the
nonmovant in this examination.8
We review questions of law using the de novo standard,
apply[ing] our independent judgment to questions of law, adopting
the rule of law most persuasive in light of precedent, reason,
and policy. 9
IV. DISCUSSION
Dr. Radecki argues that he did not owe a duty of care
to Smith because he did not have a physician-patient relationship
with Smith. Dr. Radecki examined Smith only once, and only in
the context of conducting an IME. His report reflects the fact
that Smith was informed of the limited nature of their
professional relationship.
Alaska Statute 09.55.540 defines the standard of care
for malpractice actions based upon the negligent or willful
misconduct of health care practitioners. We have previously held
that the duty to meet this standard of care arises specifically
from the existence of a physician-patient relationship.10 We have
not previously considered whether the performance of an IME
creates a physician-patient relationship between a doctor and an
examinee or whether such an examination otherwise gives rise to a
duty of care owed to the examinee.
Alaska Statute 09.55.540 requires that a party alleging
medical malpractice in Alaska must prove:
(1) the degree of knowledge or skill
possessed or the degree of care ordinarily
exercised under the circumstances, at the
time of the act complained of, by health care
providers in the field or specialty in which
the defendant is practicing;
(2) that the defendant either lacked this
degree of knowledge or skill or failed to
exercise this degree of care; and
(3) that as a proximate result of this lack
of knowledge or skill or the failure to
exercise this degree of care the plaintiff
suffered injuries that would not otherwise
have been incurred.
In M.A. v. United States, we held that the duty to
meet the standard of care specified in AS 09.55.540 is dependent
upon the existence of a physician-patient relationship.11 M.A.
involved a minors parents who alleged that their childs physician
owed an independent duty of care to them. We held that the
source of a physicians duty to provide reasonably competent
medical care lies in the unique nature of the physician-patient
relationship, and that a physician owes no comparable duty of
care where no physician-patient relationship exists.12
Dr. Radecki relied on M.A. in his motion for summary judgment to
support his argument that he did not owe a duty of care to Smith.
Decisions from the majority of other states support
Dr. Radeckis assertion that Smiths medical malpractice claim
should fail as a matter of law for lack of a duty of care. These
jurisdictions have concluded that an IME performed at the behest
of a third party does not give rise to a physician-patient
relationship or to potential for medical malpractice liability.13
Courts adopting this rule rely principally upon the desire not to
chill the willingness of doctors to act as expert witnesses in
workers compensation cases.14 In these states, the duty of care
for providing a correct diagnosis runs to the IME physicians
employer rather than the patient.15
Given these authorities, the starting point for
analyzing what duty Dr. Radecki owed to Smith must be the scope
of work Dr. Radecki agreed to perform. Dr. Radecki expressly
advised Smith at the outset of the IME that no physician-patient
relationship would be undertaken and that the purpose of the
examination was limited to the specific injuries or conditions
identified by CSKs insurance carrier. We recognize that IME
physicians examine and interact directly with examinees, but we
disagree with Smiths argument that they thereby establish
physician-patient relationships with examinees. Physicians
conducting IMEs at the behest of third parties assume a
fundamentally different role from a diagnosing or treating
physician; typically, a physician conducting an IME is not
selected by the examinee, is not hired by the examinee, does not
report to the examinee, and does not provide treatment to the
examinee. We are not persuaded that a physician who performs an
IME undertakes a traditional physician-patient relationship or
owes an examinee the duty of care that attends such a
relationship.
Smith argues that even if he and Dr. Radecki did not
have a traditional physician-patient relationship, we should rule
that they had a limited physician-patient relationship giving
rise to a duty to correctly diagnose Smiths condition. Smith
supports this argument two ways. First, he argues that
Dr. Radecki is a member of the American Medical Association
(AMA) and the AMAs ethical guidelines state that a limited
physician-patient relationship is established when an IME is
performed. Second, he argues that a growing body of case law
from other states recognizes a limited duty of care exists when
IMEs are performed. We do not find either argument to be
persuasive. Smith argues that Dr. Radeckis membership in
the AMA makes him susceptible to Smiths medical malpractice claim
because the AMAs professional standards describe a limited
patient-physician relationship in the context of an IME. The
phrase Smith quotes comes from the AMAs ethics guidelines, a non-
binding code for ethical behavior by member physicians.16 Smith
offers no authority for the implied argument that these
guidelines bear on the scope of IME physicians legal liability in
Alaska. Moreover, taken in context, the statement Smith relies
upon does not support his claim in this instance. AMA ethics
opinion 10.03 outlines the duty of IME physicians to: (1) be
objective; (2) maintain examinee confidentiality; (3) disclose
conflicts of interest; (4) inform examinees of the limited nature
of the relationship arising from the IME; and (5) make patients
aware of abnormalities discovered during the exam.17 Smith did
not present any evidence that Dr. Radecki failed to abide by any
of these standards. Thus, even if we were to consider ethics
opinion 10.03 to create a duty of care, it would not support
Smiths claim against Dr. Radecki.
As for Smiths second argument, we acknowledge that
courts in several other states have held that physicians owe a
limited duty of care in an IME setting.18 For example, the
Tennessee Court of Appeals held that a limited physician-patient
relationship exists when an IME is conducted, such that the
physician has a duty not to injure the patient during the
examination.19 Similar decisions have been reached by courts in
New York,20 Colorado,21 and Michigan.22 The Michigan court
described the limited duty as:
. . . not the traditional one. It is a
limited relationship. It does not involve
the full panoply of the physicians typical
responsibilities to diagnose and treat the
examinee for medical conditions. The IME
physician, acting at the behest of a third
party, is not liable to the examinee for
damages resulting from the conclusions the
physician reaches or reports. The limited
relationship that we recognize imposes a duty
on the IME physician to perform the
examination in a manner not to cause physical
harm to the examinee.[23]
Other courts have held that physicians have limited
duties of care encompassing the duty to discover24 and warn an
examinee25 of conditions which pose an imminent danger to the
examinees health, and to provide correct information to a patient
about his condition in the event the IME physician gratuitously
undertakes to render services which he should recognize as
necessary to anothers bodily safety.26
Though we acknowledge this growing body of case law, we
also recognize that it is not implicated by the evidence Smith
offered. Smith did not present admissible evidence that
Dr. Radecki failed to diagnose a condition that posed imminent
harm, that Dr. Radecki knew of and concealed an imminently
dangerous condition,27 that Dr. Radecki went beyond his role as an
IME physician and gratuitously rendered medical advice directly
to Smith,28 or that Dr. Radecki injured Smith during the course of
the examination itself.29 Dr. Radeckis examination of Smith
consisted of a review of Smiths medical records and a brief
physical examination that was further limited by Smith himself.30
Dr. Radecki delivered copies of his report to Smiths employer and
legal representative and had no further direct contact with
Smith. In sum, even if we were to recognize the limited duty
that has been imposed by courts in other states, such a duty
would not extend to actions taken by Dr. Radecki in this case.31
The superior court did not err in concluding that
Dr. Radecki did not have a physician-patient relationship with
Smith that would allow for liability for medical malpractice.
This conclusion is fatal to the first category of Smiths claims,
all of which expressly allege medical malpractice. To the extent
Smiths second category of claims is premised upon the theory that
Dr. Radecki willfully failed to disclose information he discovered
during the IME, Smiths claims fail because he offered no
admissible evidence to raise a genuine issue of material fact that
Dr. Radecki discovered the cyst or that Smiths earlier surgical
procedure was unsuccessful. Nor did Smith explain why, in the
absence of a physician-patient relationship, Dr. Radecki would
have had a duty to report these conditions to Smith if he had
discovered them.32
V. CONCLUSION
We AFFIRM the superior courts order granting summary
judgment in favor of Dr. Radecki on the issue of duty.
_______________________________
1 The epidural space is located outside the dura mater
surrounding the spinal cord. 9 Attorneys Textbook of Medicine
58.20 (Roscoe N. Gray & Louise J. Gordy eds., 1999). The goal of
the epidural steroid injection procedure is to reduce nerve root
inflammation. 2 Richard M. Patterson, Lawyers Medical Cyclopedia
16.9[E][2] (6th ed. 2009). Smith may have also undergone
radiofrequency ablation, a procedure in which heat is created by
ionic vibration at the tip of a needle and applied to painful
neural tissue. 4 id. 29.15a.
2 Smith was referred to Dr. Klimow for evaluation and
treatment of lumbar strain by Dr. John Duddy, an orthopedic
surgeon who had treated Smith.
3 Pages are missing from the record of Smiths medical
history; it is unclear exactly what treatment he received between
August of 2001 and April of 2003.
4 [A] perineural cyst found in the radicles of the lower
spinal chord; it is usually productive of symptoms. Stedmans
Medical Dictionary 389 (25th ed. 1990).
5 Claims in the first category include gross negligence,
failure to diagnose (argued as two separate counts), failure to
use due care, misdiagnosis, [f]ailure to provide appropriate
treatment for a medical condition; [i]mproper diagnosis, [l]ack
of informed consent, negligen[t] concealment of injury, battery,
and breach of duty. Smiths abandonment claim also falls into the
first category: it alleges that Dr. Radecki failed to attend and
care for Smith and that he failed to notify Smith of his
withdrawal from the physician-patient relationship.
6 The claims in the second category include [f]ailure to
advise of diagnosis, fraud, [f]alse [r]epresentation, and
spoliation of evidence. These claims are premised on the theory
that Dr. Radecki discovered, but failed to report, the Tarlov
cyst and that he discovered, but failed to report, that Smiths
earlier surgery had been unsuccessful.
7 These include [i]nterference [with] medical treatment,
[i]nterference [with] employment contract, and emotional
distress. In these claims Smith addresses the ways in which
Dr. Radeckis diagnosis disrupted his access to continuous
treatment paid for by CSKs workers compensation insurance.
8 Beegan v. State, Dept of Transp. & Pub. Facilities, 195
P.3d 134, 138 (Alaska 2008) (citing Matanuska Elec. Assn v.
Chugach Elec. Assn, 152 P.3d 460, 465 (Alaska 2007)).
9 Jacob v. State, Dept of Health & Soc. Servs., 177 P.3d
1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979)).
10 M.A. v. United States, 951 P.2d 851, 856 (Alaska 1998)
(holding that the source of a physicians duty to provide
reasonably competent care lies in the unique nature of the
physician-patient relationship).
11 Id.
12 Id.
13 See, e.g., Hafner v. Beck, 916 P.2d 1105, 1107-08
(Ariz. App. 1995); Felton v. Schaeffer, 229 Cal. App. 3d 229, 235-
36 (Cal. App. 1991); Martinez v. Lewis, 969 P.2d 213, 219-20
(Colo. 1998); Peace v. Weisman, 368 S.E.2d 319, 320-21 (Ga. App.
1988); Henkemeyer v. Boxall, 465 N.W.2d 437, 439 (Minn. App.
1991); Ervin v. Am. Guardian Life Assurance Co., 545 A.2d 354,
358 (Pa. Super. 1988); Johnston v. Sibley, 558 S.W.2d 135, 137
(Tex. App. 1977); Joseph v. McCann, 147 P.3d 547, 551-52 (Utah
App. 2006); Rand v. Miller, 408 S.E.2d 655 (W. Va. 1991);
Erpelding v. Lisek, 71 P.3d 754, 760 (Wyo. 2003).
14 See, e.g., Hafner, 916 P.2d at 1107; Martinez, 969 P.2d
at 219.
15 See, e.g., Hafner, 916 P.2d at 1106; Felton, 229 Cal.
App. 3d at 235.
16 History of AMA Ethics, Am. Med. Assn,
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethic
s/code-medical-ethics/history-ama-ethics.shtml (last visited July
16, 2010).
17 Opinion 10.03 - Patient-Physician Relationship in the
Context of Work-Related and Independent Medical Examinations, Am.
Med. Assn (Dec. 1999),
http://www.ama-assn.org/ama/pub/physician-resources/medical-ethic
s/code-medical-ethics/opinion1003.shtml.
18 See, e.g., Green v. Walker, 910 F.2d 291, 296 (5th Cir.
1990); Betesh v. U.S., 400 F. Supp. 238, 246-47 (D.D.C. 1974);
Ritchie v. Krasner, 211 P.3d 1272, 1280-81 (Ariz. App. 2009);
Keene v. Wiggins, 69 Cal. App. 3d 308, 313 (Cal. App. 1977); Webb
v. T.D., 951 P.2d 1008, 1013-14 (Mont. 1997); Hoover v.
Williamson, 203 A.2d 861, 863-64 (Md. 1964); Reed v. Bojarski,
764 A.2d 433, 443-44 (N.J. 2001); Johnston, 558 S.W. 2d at 137.
19 Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009 WL
1910959 (Tenn. App. June 30, 2009).
20 Bazakos v. Lewis, 911 N.E.2d 847, 850 (N.Y. 2009)
(holding that such a limited relationship encompasses a duty not
to injure, but no duty to correctly diagnose).
21 Slack v. Farmers Ins. Exch., 5 P.3d 280, 283-84 (Colo.
2000).
22 Dyer v. Trachtman, 679 N.W.2d 311, 314-15 (Mich. 2004).
23 Id. (emphasis added).
24 Webb v. T.D., 951 P.2d 1008, 1013-14 (Mont. 1997)
(health care provider retained by third party to perform IME owes
duty to patient to: (1) discover conditions posing imminent
danger to examinee and take reasonable steps to alert examinee;
and (2) assure advice to examinee meets standard of care for
providers profession; IME provider does not have the same duty of
care that a physician has to his or her own patient).
25 Id.; see also Green v. Walker, 910 F.2d 291, 296 (5th
Cir. 1990) (physician who performs pre-employment medical
examination for employer has affirmative duty to act in keeping
with training and expertise and must inform patient of conditions
posing imminent danger); Betesh v. United States, 400 F. Supp.
238, 246-47 (D.D.C. 1974) (army physicians who discovered
abnormality in chest X-ray during selective service screening
exam had affirmative duty to notify examinee of need for further
medical attention); Reed v. Bojarski, 764 A.2d 433, 443-44 (N.J.
2001) (physician retained to perform pre-employment physical has
affirmative, non-delegable duty to inform patient of potentially
serious medical condition).
26 Hoover v. Williamson, 203 A.2d 861, 863 (Md. 1964)
(plaintiff may not ordinarily recover for malpractice without
express doctor/patient relationship, but one who gratuitously
undertakes to render services which he should recognize as
necessary to anothers bodily safety, and leads the other in
reasonable reliance on the services to refrain from taking other
protective steps, or to enter on a dangerous course of conduct,
is subject to liability to the other for bodily harm resulting
from the actors failure to exercise reasonable care to carry out
his undertaking ).
27 Cf. Webb, 951 P.2d at 1013-14; see also Green, 910 F.2d
at 296; Betesh, 400 F. Supp. at 246-47; Reed, 764 A.2d at 443-44.
28 Cf. Hoover, 203 A.2d at 863.
29 Cf. Gentry v. Wagner, No. M2008-02369-COA-R3-CV, 2009
WL 1910959, at *7-8 (Tenn. App. June 30, 2009).
30 Smith refused to remove a lumbosacral corset for the
examination and forcefully decline[d] examination of the area,
even with the corset left on, declined to perform range of motion
tests, and refused to do a pelvic rotation movement.
31 We agree with Smith that the absence of a physician-
patient relationship does not immunize a physician performing an
IME from all tort liability, and we do not rule out the
possibility that a physician could be liable for conduct
committed during an IME that is both tortious and not dependent
upon a physician-patient relationship. Indeed, at oral argument
before the superior court, Dr. Radeckis counsel acknowledged that
an IME physician has a duty to act carefully and reasonably. But
the absence of a physician-patient relationship is fatal to
Smiths medical malpractice claims.
32 Smith does not argue on appeal that the superior court
erred by treating all of his original claims as a single count of
medical malpractice without explanation, nor did he argue this
point below. It would have been preferable for the superior
court to address Smiths claims individually or memorialize its
implied conclusion that all of Smiths claims are variously
phrased medical malpractice claims. But because our independent
review of the record leads us to conclude that Smiths complaint
was correctly interpreted as asserting multiple claims of medical
malpractice, the superior courts error was harmless in this
instance.
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