What you don’t see during pre-employment exam might hurt you

Specialized exams still carry high burden to act on findings, lawyers say

Even though a patient may visit an occupational health program for a specific type of examination, the doctor and facility can be held responsible for not detecting health problems that were outside the focus of the exam. But does that mean an occupational health physician is responsible for detecting any sort of health problem even though the patient is there for a pre-employment exam?

Probably not, but the issue is unclear, says Wendy Beth Kahn, JD, an attorney with Lubin and Meyer in Boston. Kahn recently represented a man who sued an occupational health physician who performed a pre-employment exam on him but failed to act on a cancerous lesion. She says the case is a good example of how the purpose of an exam is not the only determinant of the standard of care. The real question in many cases is whether the doctor or nurse should have reasonably expected to notice and act on the health problem. Whether they were actively looking for that particular health problem can be immaterial.

"The standard of care mandates that you act for the health of the patient, no matter the original purpose of the exam," Kahn explains. "The duty of care transcends whether it is a pre-employment examination or someone [consulting] their family physician for a routine physical."

Should physicians notice everything?

Kahn’s case involved a 44-year-old man who went to an occupational health physician for a pre-employment exam in May 1991. According to the man, he pointed out to the doctor a dark, irregular lesion on his back at waist level, just above his left buttock. The lesion was about the size of a nickel, raised, rough to the touch, and blue black in color.

The doctor later denied that he saw the lesion at all and said the patient never mentioned it. The patient, however, claims that the doctor saw the lesion and told him it was nothing to worry about.

Eleven months after the pre-employment exam, the man went to an internist who examined the lesion and immediately referred the man to a surgeon. A biopsy revealed the lesion was Clark’s level IV, a very high grade malignant melanoma. Since there was a high chance of recurrence, the surgeon referred the man to an oncologist for consultation.

The oncologist determined that the man had a 45% chance of five-year survival, a 30% chance of 10-year survival, and an extremely high risk of recurring cancer.

The patient sued the occupational health physician for failing to notice or act on the lesion. Regardless of the purpose of the exam, he claimed, the doctor should have noticed the lesion, realized it signaled a serious problem, and referred the man to a dermatologist or surgeon. The doctor claimed he never saw the lesion and would have referred the man for the proper care if he had seen it.

The breaking point in the case came when the doctor admitted that he had performed a prostate exam as part of the pre-employment exam. Since the lesion was located just above the left buttock, it would have been almost impossible for the doctor not to notice it. Either way, the doctor was at fault, Kahn explains. Either he did not notice a malignant lesion that was right in his face, or he noticed it and did not act on it.

During the trial, the doctor’s attorneys argued that there was a "different, lesser duty of care," Kahn recalls. They moved for summary judgment on that point, saying the malignant lesion fell outside the scope of a pre-employment exam.

The court denied the motion, and the doctor eventually settled for $400,000. The doctor’s attorneys did not return several phone calls requesting comments on the case.

Special relationship in occupational health

Some occupational health providers say the doctor’s experience was in a gray area. If he had been performing an exam in which it would have been expected that he would look for skin lesions, such as an annual physical, the doctor clearly would be wrong for not spotting the cancerous growth and acting on it. But a pre-employment physical is a unique type of exam, notes Charles Prezzia, MD, MPH, FACPM, president of Occupational Care Consultants of Toledo (OH).

"In a pre-employment exam you don’t really even have a doctor-patient relationship. You have more an examiner-examinee relationship," Prezzia says. "You’re doing this exam for a third party and looking specifically for items that third party would be interested in."

To Prezzia, that means you are not violating the standard of care by failing to notice a skin lesion or other health problem that has no relevance in the pre-employment exam. In the Boston case, Prezzia theorizes that it might have been understandable for the doctor to miss the skin lesion during a prostate exam, even if it was just above the buttock. Depending on the exact location, how the patient was disrobed and prepped, and how the doctor approached for the prostate exam, it is feasible that the lesion could have gone unnoticed.

"In that case, it would have been pure luck that it was right there where you couldn’t miss it," he says. "But just because it was in that area doesn’t mean he necessarily saw it. And if he didn’t see it, he didn’t have any obligation to do anything about it."

Once you do stumble across a nonwork-related health problem, Prezzia agrees that you are obligated to act. (For expert advice on how to act on such concerns, see related article, p. 38.)

Prezzia even notes that you can get yourself in legal trouble by going too far in the opposite direction. If a female patient comes to you for a respirator certification exam and you have her disrobe so you can check her whole body for cancerous lesions, it may not be long before a lawsuit is filed accusing you of sexual misconduct. And on a less dramatic note, employers may question why you are taking the time to do a nearly complete physical exam when the worker was referred for a specific purpose.

Clearly must act on whatever you see

The lesson for occupational health providers, Kahn says, is that you must act on any health problem you find — whether you were looking for that health problem or not. But does that mean that you can be held liable for any health problem that existed while the patient was in your exam room? If your pre-employment exam does not include a rectal exam, you probably won’t be held liable for not finding the patient’s existing rectal cancer.

"This is all a gray area, but the answer probably is no," Kahn says. "You are not obligated to do everything possible while the patient is in front of you. It’s OK to say the patient is here specifically to determine if he is physically fit for this job."

But if in the course of looking for one problem you accidentally find another, you are fully obligated to act. From that point on, Kahn says, your obligation is no different from an exam in which you specifically set out to find that problem.