Court of Appeals of Texas,
Jeanette C. ALMAGUER, Appellant,
Douglas W. JENKINS, M.D., Appellee.
Nov. 30, 1999.
Attorneys & Firms
*836 Peter J. Cresci, Atkins & O’Brien, L.L.P., San Antonio, for Appellant.
Thomas F. Nye, Brin & Brin, P.C., Corpus Christi, for Appellee.
Before PAUL W. GREEN, JJ.
Jeanette C. Almaguer appeals an order granting summary judgment on behalf of Douglas W. Jenkins, M.D. Almaguer sued Jenkins for medical malpractice and common law negligence alleging that he improperly examined and reported her condition to the Department of Labor. We hold that a physician does not owe a duty to an examinee whom he examines for the sole purpose of preparing a report in conjunction with an adjudication of a workers’ compensation claim. We affirm the summary judgment of the trial court.
*837 Background and Facts
Jenkins performed an examination of Almaguer at the bequest of the Department of Labor for the purpose of conducting a second opinion consultation in conjunction with the adjudication of a claim for workers’ compensation. Jenkins reported to the Department of Labor that he found no evidence of immune disorder. Almaguer alleges that Jenkins improperly tested and evaluated her and incorrectly reported her condition to the Department of Labor. Further, she alleges that due to his mis-diagnosis her workers’ compensation was denied without medical evidence; and, she experienced time delays in receiving medical treatment and her workers’ compensation benefits. She brought claims of medical malpractice, common law negligence, and gross negligence. The trial court granted summary judgment in favor of Jenkins.
Standard of Review
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993).
Jenkins argues he was entitled to summary judgment because there was no physician-patient relationship and therefore he did not owe a duty to Almaguer. Almaguer argues that the duty owed to her was not solely premised upon the physician-patient relationship, but on a duty not to harm the patient. In Id. at 46. Subsequent case law in Texas has abandoned Justice Ray’s reasoning.
In St. John v. Pope, 901 S.W.2d 420 (Tex.1995). The Supreme Court of Texas reversed a court of appeals decision that held:
By undertaking affirmatively to identify Pope’s ailment based on the information supplied by Suarez, St. John assumed a legal duty to act with ordinary care in arriving at his identification and his consequent determination of whether he was qualified to treat the ailment.
Id. at 423.
Like the case in Id. at 423. Although Almaguer plead common law negligence in addition to medical malpractice, because all of Almaguer’s claims arise out of an alleged mis-diagnosis during a medical examination by a physician, the case is more appropriately viewed solely as a medical malpractice case.
Medical malpractice differs from ordinary negligence in the circumstances under which a duty arises. Johnston v.. Sibley, 558 S.W.2d 135, 137 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.).
A physician-patient relationship arises when the patient requests and is supplied medical information. See tuberculosis from x-rays taken as part of a pre-employment physical exam).
Jenkin’s only duty to Almaguer was not to injure her during the examination. See Sibley, 558 S.W.2d at 137–138.
As Jenkins has conclusively negated an essential element of Almaguer’s cause of action, he is entitled to summary judgment. Casas, 856 S.W.2d at 733. Accordingly, *839 we affirm the summary judgment of the trial court.