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Court of Appeal, Second District, Division 4, California.

Robert OLSON, Plaintiff and Appellant, v. WESTERN AIRLINES, INC., and Webster Marxer, M.D., Defendants and Respondents.

Civ. 66534.

Decided: May 17, 1983

Samuel Shore and James R. McGrath, Los Angeles, for plaintiff and appellant. Kirtland & Packard, Marshall Silberberg and James J. Kjar, Los Angeles, for defendants and respondents.

Appellant Robert Olson (Olson) appeals from a summary judgment entered against him and in favor of respondents Western Airlines, Inc. (Western) and Webster Marxer, M.D. (Marxer) pursuant to Code of Civil Procedure section 437c.1

In support of, and in opposition to, that motion for summary judgment, the parties filed papers from which it appears uncontroverted that Olson had applied for employment as a flight crew member with Western.   Western employed Marxer for compensation to conduct preemployment physical examinations of prospective employees.   In the course and scope of that employment, Marxer gave Olson a preemployment physical examination.   He reported to Western and to Olson that during that examination he found a spot called a microaneurysm on the fundus of Olson's eye.   On the basis of that finding, he diagnosed Olson as being a prediabetic, that is, a person who would potentially become a diabetic within five to fifteen years.   This was a condition which precluded employment in the position for which he had applied.   Olson was not hired by Western.

Olson's counsel asserted in his declaration in opposition to the motion for summary judgment that before his physical examination, Olson was told by Brown, a managerial employee of Western, that he would be hired by Western if he passed his preemployment physical.   Respondents categorically denied this in a declaration by Brown.   They also denied that Western or Marxer had any duty to Olson.   Olson seeks to hold both Marxer and Western liable.


Appellant Olson contends that the trial court erred (1) in deciding issues of fact when there was evidence on both sides of the issue;  (2) in deciding as a matter of law that Western owed no duty of care to appellant in the performance of its preemployment physical examination;  (3) in holding as a matter of law that Marxer owed no duty of care to Olson in the performance of its preemployment physical examination and (4) in holding as a matter of law that appellant had sustained no damages as a result of the negligence of respondents.

Respondents contend that Western had no duty to hire Olson;  that neither Marxer nor Western had any duty to Olson;  that Olson did not claim that he was prevented by the examination from obtaining employment from any other airline;  and contend additionally, that appellant did not introduce any admissible evidence or counter-affidavits in opposition to respondents' motion for summary judgment.



“Summary judgment is properly granted where the evidence in support of the moving party, ․ is sufficient to establish a complete defense to appellant's claims and there is no triable issue of fact.  (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338 [138 Cal.Rptr. 670];  Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].)”  (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362, 178 Cal.Rptr. 783, 636 P.2d 1121.)

 The trial court is justified in granting the motion only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendants to judgment, and those of the plaintiffs, liberally construed, show that there was no issue of fact to be tried.  (See Stationers Corp. v. Dun & Bradstreet, Inc., supra, 62 Cal.2d at p. 417, 42 Cal.Rptr. 449, 398 P.2d 785.)


Respondents contend that appellant did not introduce any admissible evidence in opposition to their motion for summary judgment.   That contention is meritless.

As to the admissibility of objectionable evidence in the papers to be considered in determining a motion for summary judgment, section 437c has now been amended to read in pertinent part:  “[T]he court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court ․”  This amendment was expressly made inapplicable “to any appeal [where] the notice of appeal is filed prior to January 1, 1981.”  (Stats.1980, ch. 57, § 2, p. 153.)   Conversely, it governs cases in which the notices of appeal were filed after that date, including the one before us in which the notice of appeal was filed on December 14, 1981.

The effect of that amendment is dispositive of respondents' contention that appellant did not introduce any admissible evidence or counter-affidavits in opposition to respondents' motion for summary judgment.   The declaration of appellant's counsel in opposition to the motion for summary judgment, in addition to containing his statement that “ ‘a plethora of other doctors' ” have given a diagnosis contrary to that of Dr. Marxer, is given under penalty of perjury and recites that if called as a witness he could competently testify to the facts set forth therein.   More importantly, attached to it as Exhibits “B” and “C” were the medical reports of Peter H. Forsham, M.D. dated October 7, 1976, and of Lawrence I. Lonn, M.D., dated September 30, 1976.

Each of these reports contains findings and conclusions contrary to the diagnosis of Dr. Marxer who purportedly found a spot on the fundus of appellant's eye.   This allegedly indicated a predisposition to diabetes.   In fact, neither of those doctors found such a spot on the fundus of appellant's eye nor any such predisposition of appellant for diabetes.

 Each of these reports and portions of the declarations of which respondents complain, is relevant.   Although each constitutes hearsay which could have been successfully objected to, no such objection interposed below has been called to our attention nor is it disclosed in the record on appeal.   Respondents are precluded from raising this issue for the first time on appeal by their failure to make timely evidentiary objections in the trial court.   (See Code Civ.Proc., § 437c, subd. (b);  People v. Rogers (1978) 21 Cal.3d 542, 146 Cal.Rptr. 732, 579 P.2d 1048, and the cases cited therein at pages 547 and 548, 146 Cal.Rptr. 732, 579 P.2d 1048.)


 There were other issues of fact to be tried which defeat respondents' right to summary judgment.  (Stationers Corp. v. Dun & Bradstreet, supra, 62 Cal.2d 412, 42 Cal.Rptr. 449, 398 P.2d 785.)

The deposition testimony of appellant attached to the motion for summary judgment included testimony that he was told by Mr. William Newell, Western's assistant chief flight instructor on March 2, 1973, that if he passed his preemployment physical examination, he would be in the May 1976 training class for Western Airlines pilots.   The declaration of respondents' employment manager, Richard L. Brown, in support of the motion for summary judgment stated that in 1976 Western had 15,000 pilot applications of which only 10,000 met Western's minimum qualifications.   Of these 10,000, only 239 were interviewed.   Appellant was one of those 239 interviewed, thus establishing at least the great viability of his candidacy for the employment sought.   He had been a qualified military pilot who would apparently have been a very eligible candidate for that employment.

Respondents contend that appellant did not rely on Dr. Marxer's diagnosis and argue that such reliance was a necessary element for appellant.   Assuming, arguendo, that such reliance was necessary, there was some evidence that appellant did rely.   In fact, in alleged reliance on Dr. Marxer's advice, he was examined by Drs. Forsham and Lonn and spent money for those examinations to his damage.

While it is true that appellant did plead that Marxer's faulty diagnosis “had the effect of blocking his piloting career with Western Airlines,” he also pled in that third amended complaint that “as a result of the negligent, careless and reckless examination by the defendant Marxer, the plaintiff Robert Olson was caused to lose employment otherwise available to him meeting his capabilities and abilities.”   That allegation in the third amended complaint is broad enough to effectively refute respondents' claim that “Appellant does not claim that the Examination of Respondent Marxer Prevented Him From Obtaining Employment From Any Other Airlines.”


 Once Dr. Marxer undertook the preemployment physical examination and the reporting of it to Olson and Western, he owed Olson a duty to conduct and report it with due care and to refrain from causing appellant harm, whether physical or otherwise.

Respondents contend that neither Dr. Marxer nor Western owed appellant a duty of care and contend further that before there may be liability on the part of either of them, actionable negligence by Dr. Marxer, in the scope of his employment by Western, must have caused appellant actual physical injury.   Each of these contentions is meritless.

Respondents rely heavily on Keene v. Wiggins (1977) 69 Cal.App.3d 308, 138 Cal.Rptr. 3.   Their reliance is misplaced.  Keene is factually distinguishable.   More importantly, the Keene court properly concluded:

“The duty [a doctor] owes to [the persons he sees] varies with the relationship of the parties, the foreseeability of injury or harm that may be expected to flow from his conduct and the reliance which the person may reasonably be expected to place on the opinion received.   A case-by-case approach is required.

“It is well established by authorities in other states the physician is liable for malpractice or negligence only where there is a relationship of physician-patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and there is a breach of professional duty to the patient (Hoover v. Williamson, 236 Md. 250 [203 A.2d 861, 10 A.L.R.3d 1064] ).  Whether any such duty may result when the physician examines the person not as a part or for the purpose of medical treatment is discussed in 10 A.L.R.3d 1071.  (Fn. omitted.)   The authorities reported there uniformly hold that where no physician-patient relationship exists the doctor's only duty is to conduct the examination in a manner not to cause harm to the person being examined.   The physician acts as an agent of the person requesting the examination (see Layton v. New York Life Ins. Co., 55 Cal.App. 202 [202 P. 958] ) and absent special circumstances, his duty to observe good standards of professional skill in reporting the results of the examination runs only to the person employing him.  (Fn. omitted.)  In California, however, the courts have not used status alone as a means of determining liability (Rowland v. Christian, supra, 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561] ).”  (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 313, 138 Cal.Rptr. 3;  emphasis added.)

The Keene court properly concluded that “[i]n the absence of special factors justifying reliance it is not foreseeable a claimant in a workers' compensation case would, without question, accept and rely upon medical reports of the employer's insurance carrier.   This is at least true where the examining physician is not the treating physician approved by the patient and is used by the carrier solely to assess the value of the claim where the parties will be dealing at arm's length.   Reliance is even less likely where [as in Keene] the employee has expressed dissatisfaction with the benefits then being offered by the employer's carrier.   In view of the adverse relationship with the person being examined, the doctor's conduct is not morally blameworthy.”  (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 314, 138 Cal.Rptr. 3.)

The case before us is otherwise.   Dr. Marxer owed a duty to Western to carry out his examination in a non-negligent manner.   He owed appellant no duty until he undertook to examine appellant and advised him (according to the claim of appellant) that he had a spot on the fundus of his eye which indicated that he was a prediabetic, that is, a person potentially liable to develop diabetes within a period of five to fifteen years.   According to appellant, Dr. Marxer undertook to, and did, advise him to be examined by other doctors who would presumably more accurately diagnose his condition.   In the case at bench, there was no Keene v. Wiggins type adverse relationship between Western and Olson to put the latter on guard as to Western and Marxer's intentions or examination results.   Appellant had every reason to believe that the doctor was examining him and reporting his examination results neutrally and carefully to both Western and to himself.

 When a doctor examines a patient there is a doctor-patient relationship, at least as to any advice the doctor gives the patient.   Here, the claim is that Dr. Marxer erroneously advised Olson not only of the supposed existence of the spot, and the supposed prediabetic condition, but also to see the other physicians.   The more important concept in Keene as it relates to this case is the application of the Rowland v. Christian rule that “In California ․ the courts have not used status alone as a means of determining liability.”  (Keene v. Wiggins, supra, 69 Cal.App.3d at p. 313, 138 Cal.Rptr. 3.)

 The determination of duty is primarily a question of law for the court (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36), but the trial court's determination of law is not binding on us.   The fundamental principle, of course, is that all persons are required to use ordinary care to prevent others being injured as a result of their conduct.  (Civ.Code, § 1714;  Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.)

“[A]ny departure from this principal involves the balancing of a number of considerations, namely:

“(a) the forseeability of harm to the plaintiff;

“(b) the degree of certainty the plaintiff suffered injury;

“(c) the closeness of the connection between the defendant's conduct and the injury suffered;

“(d) the moral blame attached to the defendant's conduct;

“(e) the policy of preventing future harm;

“(f) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach;  and

“(g) the availability, cost, and prevalence of insurance for the risk involved (Rowland v. Christian, supra, 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561).

“Biakanja v. Irving, 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358], adds to these factors in the balancing process consideration of the extent to which the transaction was intended to affect the plaintiff.   As a general principle a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous (Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434–435 [131 Cal.Rptr. 14, 551 P.2d 334] ).”  (Keene v. Wiggins, supra, 69 Cal.App.3d 308, 312, 138 Cal.Rptr. 3.)

Based on the facts related in the declarations, the reports attached thereto as exhibits, and the portion of the deposition respondent has had included in the clerk's transcript, we conclude that it was foreseeable to Dr. Marxer and Western that a negligent determination or reporting of appellant's condition could interfere with and indeed destroy Olson's ability to pursue his flying career for which he had the entry level qualifications and the capabilities.   That foreseeability was not dependent upon the existence of a physician-patient relationship of any particular duration.

 Respondent argues that the injury must be physical to be actionable.   It does not.  (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 922, 167 Cal.Rptr. 831, 616 P.2d 813.)

Respondents have presented evidence contrary to that produced in opposition to the motion for summary judgment on which they may prevail at trial.   Summary judgment, however, may only be granted where there is no triable issue of material fact.   That was not the case here.

 While we conclude that facts establishing a cause of action for a breach of duty arising out of a physician-patient relationship were sufficiently pled and that the papers in support of the opposition to the motion for summary judgment raised triable issues of material facts, we enunciate for the guidance of the trial court that our holding is not based solely on those narrow grounds.

To the contrary, our conclusion is also based, under the principles enunciated in Rowland v. Christian, Tarasoff v. The Regents of California and Biakanja v. Irving, on the plain foreseeability of injury that may result to an applicant for employment from a negligently conducted preemployment physical examination or from the reporting of the erroneous results of such an examination.   This is especially true in a field in which employees must be in excellent physical condition.   It is foreseeable that such conduct may well preclude appellant's future employment not only by Western, but by all employers in his chosen field.

As distinguished from the usual independent physical examination situation, the facts pled in the third amended complaint were that Western was the employer of Dr. Marxer and that his negligent conduct in the course and scope of that employment proximately caused Olson's injury and damage.   If those factual allegations are proven, Western, too, could be liable.   There is some evidence raising issues as to each of the material facts pled.

We have considered all the contentions raised by each of the parties but since we reverse for the reasons above given, we need not, and do not, discuss the other contentions of the parties.

The judgment (order) of dismissal is reversed.


1.   All statutory references are to the Code of Civil Procedure unless otherwise stated.

McCLOSKY, Acting Presiding Justice.

AMERIAN and WILLETT,* JJ., concur.Hearing denied;  MOSK, J., dissenting.

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