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  Fair catch: What to consider—and
  why—before agreeing to be
  responsible for health fair testing

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cap today

August 2005
Feature Story

Does unpaid status absolve the pathologist of liability?
Does the pathologist owe a legal duty to health fair participants?
What is the scope of the pathologist’s duty?
Suggestions for pathologists

It is not uncommon for pathologists or other laboratory personnel to participate in health fairs sponsored by a hospital or community organization. As part of these fairs, certain diagnostic tests are performed for participants. For example, a person’s cholesterol level may be checked, and a glucose may be run. Generally, the results are reported to the organizer of the health fair—who, in turn, is expected to notify the participant or the participant’s designated physician.

The personnel who do the screening at health fairs generally volunteer their time. They are not paid by either the organizer or by the participant. Indeed, the individuals for whom laboratory tests are performed do not pay any fee to participate in the fair.

The question that arises is whether a pathologist who volunteers to serve in a health fair has any liability to a person whose specimen is tested in two related, but somewhat different, circumstances:

  • The testing negligently fails to identify a condition that was tested for.
  • The testing is properly performed but clinically significant results are not brought to the attention of the participant or a physician designated by the participant.

These issues will generally be governed by the law of the state in which the fair took place.

Because relevant law will vary from jurisdiction to jurisdiction, it is impossible to give a definitive response. Nevertheless, precedent in some states suggests that a pathologist could be found liable for failing to identify a condition that is tested for—where that failure results in significant injury to the health fair participant because the condition remains untreated. Similarly, a pathologist could be found liable if significant results are identified but not communicated to the participant or the participant’s designated physician.

For this reason, I would recommend that a pathologist consider four steps before agreeing to be responsible for testing in connection with a health fair:

  • Determine whether you wish to have the name of a physician to whom to report any seemingly significant test result for each health fair participant, and, if so, inquire whether the health fair organizer has each participant designate a responsible physician.
  • Satisfy yourself that the fair organizer has a system in place to notify participants (or their designated physicians) of any clinically significant laboratory result—and that the organizer in fact carries out this system.
  • Ask the organizer to secure from participants a consent form waiving any right to sue the pathologist, any other lab personnel, and the pathologist’s professional corporation.
  • Check with your malpractice insurer to make sure that lawsuits arising from volunteer services are covered by your insurance.

The reasons for these conclusions are set forth in this article.

Does unpaid status absolve the pathologist of liability?

At the outset, it might seem unfair that pathologists who volunteer their time for the good of the community, without any compensation, should be subject to liability. After all, it bespeaks a certain ingratitude for an individual who was never charged any fee by a public-spirited pathologist to turn around and sue that pathologist for negligence. While this situation might provide a good illustration of the maxim that "No good deed goes unpunished," the fact that a physician performs services without charge will not insulate that physician from liability for negligence.

Thus, it has been said that "one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to carry out his undertaking if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking." [See Restatement of Torts (2d), Sec. 323; Hoover v. Williamson, 203 A.2d 861, 863 (Md. 1964).] Applying this sort of reasoning, a plaintiff whose condition was misdiagnosed or misreported after a health fair screening could say that the absence of any indication of health problems from the health fair results caused harm by inducing him or her to forego other diagnostic possibilities.

A pathologist who undertakes a responsibility to an individual—whether or not for compensation—has an obligation to carry out that responsibility in a non-negligent fashion. The point can be illustrated by analogy. Suppose an individual receives a skin cream as part of a promotional giveaway and the cream turns out to cause severe burns. The fact that the victim was not charged for the cream would hardly exempt its manufacturer from liability for negligence.

Of course, there may be specific statutes in particular states that absolve the pathologist of liability in this sort of situation. So-called Good Samaritan laws are examples of statutes that provide immunity from liability for volunteer physicians in defined circumstances. Absent a squarely applicable immunizing statute, however, pathologists who participate in health fairs should not assume they are free from liability for negligence just because they acted in a public-spirited manner.

Does the pathologist owe a legal duty to health fair participants?

It is axiomatic that a physician cannot be found liable for negligence unless that physician owes a duty to the plaintiff. Quite apart from their status as unpaid volunteers, therefore, pathologists who donate their time to do laboratory work for health fairs might be inclined to believe that they cannot be found liable for negligence because they have not entered into a physician-patient relationship with the individuals whose specimens are tested in connection with the fair. These pathologists might conclude that they owe a duty to the health fair organizer—but not to individuals whose specimens are screened at a health fair.

Although there is some appeal to this line of reasoning, a series of cases dealing with physicians who conduct pre-employment physicals on behalf of employers strongly suggests that this reasoning is unlikely to prevail. For example, in Reed v. Bojarski [764 A.2d 433, 437 (N.J. 2001)], the Supreme Court of New Jersey found a physician liable for not telling an applicant for employment that x-rays taken during a pre-employment physical suggested the possible presence of Hodgkin’s disease. More recently, in Stanley v. McCarver [92 P.3d 849 (Ariz. 2004)], the Supreme Court of Arizona held that a radiologist owed a duty to an individual who had a chest x-ray as part of a pre-employment physical, even though the radiologist and the individual had not entered into a physician-patient relationship.

In both cases, the defendant physician was retained—and paid —by a prospective employer to provide information to the prospective employer. In neither case did the defendant physician enter into a physician-patient relationship with the prospective employee. Nevertheless, in each case, the state supreme court held that the physician could be held liable.

To be sure, these and similar cases involve pre-employment physicals—not health fairs. But the principle that underlies them seems fully applicable to the health fair context. That principle is this: Even where an individual who is tested has not engaged or paid the physician to provide a diagnosis, the physician who discovers clinically significant information about the health status of that individual owes a duty to the individual if the individual has a reasonable expectation that he or she will be advised of such information by the physician.

What is the scope of the pathologist’s duty?

Even assuming that a pathologist owes a duty to a health fair participant, what is the scope of that duty? Hasn’t the pathologist discharged whatever duty is owed when the pathologist reports clinically accurate results to the fair organizer? Or does the pathologist have a duty to make sure the results are reported to the participant (or the participant’s physician)?

It might seem that a pathologist would have discharged any duty to a health fair participant by reporting that participant’s results to the fair organizer. However, a number of cases from the radiology context suggest that a pathologist might be held liable if lab tests identify clinically significant findings and those findings are not reported to the health fair participant. For example, in Phillips v. Good Samaritan Hospital [416 N.E.2d 646 (Ohio App. 1979)], the court held that, in some circumstances, a radiologist could be held liable where the radiologist properly communicated a correct diagnosis to the attending physician through established hospital channels—but where the radiologist did not follow up to make sure that the attending had received the diagnosis.

The following language from the Phillips decision is particularly relevant to pathologists: "The exigencies of the medical situation may call for correspondingly different levels of response. Severity of condition, urgency of treatment, potential for interim injury, suffering from delayed response, need for further analysis and consultation, and the patient’s awareness of the extent of injury or the nature of the condition may all be relevant in ascertaining the necessary course of conduct in reporting a diagnosis. In certain situations, direct contact with the treating physician is necessary beyond communication through administrative personnel." [Id. at 649.] Interpolated to the context of a health fair, this language suggests that there may be findings so clinically significant that the pathologist might face liability for not making sure that the findings are communicated to the individual who was tested or to that individual’s physician. [See also Stanley v. McCarver, supra, 92 P.3d at 854-855 (whether a radiologist who conducts a pre-employment physical must notify the individual examined about the existence of abnormalities "may depend upon factors such as whether there is a treating or referring physician involved ... whether the radiologist has means to identify and locate the patient ... and other factors").]

What sort of findings from a health fair might be so clinically significant that they require a pathologist to make sure they are conveyed to the individual tested or to that individual’s physician? There is no bright-line answer to this question. However, a pathologist who wants to be on the safe side is well advised to follow up on any lab results that suggest a need for immediate medical intervention—or a substantial possibility of a condition that could be life-threatening if not promptly addressed. In these circumstances, Phillips and other cases suggest that the pathologist should make sure that the fair organizer has communicated the results to the participant or a designated physician and, if the organizer has not, should convey the results directly, assuming the patient or the responsible physician can readily be located.

Suggestions for pathologists

It should be emphasized that I am aware of no case that holds a pathologist liable for negligence relating to a health fair. However, the foregoing analysis suggests that, at least in some jurisdictions, a pathologist could be subject to liability for conduct relating to the pathologist’s volunteer activities in connection with a community health fair. The question, therefore, arises: What, if anything, should pathologists who are contemplating volunteering their services for a local health fair do to minimize the risk of liability from service? In my opinion, there are four possible actions.

First, the pathologist may want to determine whether the organizer of the health fair requires participants to designate a physician to whom seemingly significant results should be sent. The ability to report results to a physician may make it easier for both the fair organizer and the pathologist if such results are identified. Otherwise, communications will have to be with the participant—who may not understand the clinical significance of the laboratory results.

Second, the pathologist should be satisfied that the organizer of the health fair is a responsible organization that has a mechanism in place to notify participants and their physicians, if designated, of clinically significant results. Similarly, the pathologist should follow up with the organizer to make sure the appropriate individuals have been notified of such results. In this connection, the pathologist might consider requiring the health fair organizer to have a system in place by which the laboratory is given the name and contact information for a physician for each participant.

In this manner, the pathologist will have the information necessary to communicate clinically significant results if the fair organizer fails to do so. Similarly, the pathologist might consider obtaining the name and contact information of each individual tested. This information will at least permit contact with the individual if a clinically significant finding is made and an attending physician either is not identified or cannot be reached.

Third, the pathologist might want to insist that any individual whose specimen is tested at a health fair sign a release waiving any right to sue the pathologist, any other lab personnel, and the pathologist’s professional corporation. As noted earlier in this article, there is a distinct possibility that a pathologist might be held legally accountable for misreporting a lab result for a health fair participant. This is so even though the pathologist is an unpaid volunteer, has not entered into a physician-patient relationship with the participant, and has communicated clinically significant results to the fair organizer in a timely manner (where the organizer does not transmit those results).

Given these considerations, it might be advisable for the pathologist to require a waiver or "hold harmless" agreement from any adult who participates in the fair, or from the parent or guardian of a child or other person lacking the legal capacity to contract. This sort of waiver can be obtained either by the health fair organizer or by the pathologist. In any event, the issue should be discussed and agreed upon by the pathologist and the health fair organizer before the pathologist commits to participate.

It is, of course, possible that a plaintiff’s lawyer might try to characterize a waiver as a contract that had to be signed—and therefore unenforceable as being against public policy. However, where a pathologist is donating time and services to a health fair and participants are not paying for either, it would not seem contrary to public policy to require execution of such a document in advance. Moreover, unless there is a concern that requiring a waiver might somehow put the pathologist in a bad light in the community, there would seem to be little downside in this approach.

Finally, pathologists are advised to discuss with their insurance agents whether services performed in connection with a health fair are covered by insurance. It is bad enough to be sued for one’s volunteer activities designed to promote community health. It is even worse to discover there is no insurance coverage for such activities.

If a pathologist determines that there is no coverage or that the coverage situation is unclear, several options are available. The pathologist can decide not to provide services for the health fair. Alternatively, the pathologist can seek an amendment to the insurance policy that will provide coverage. Or the pathologist can require the fair organizer to include the appropriate persons as named insureds under an insurance policy that the organizer might have. Finally, the pathologist can simply decide to take the risk. The important point here is that the pathologist should consider the issue in advance and determine how to address it.

Conclusion

I am unaware of any cases in which a pathologist has been held liable for services in connection with a health fair. Nevertheless, relevant case law suggests that, in certain circumstances, pathologists could be liable if tests on a health fair participant’s specimen are negligently performed or if clinically significant results are not conveyed to the participant or a designated physician. Accordingly, this article suggests various mechanisms for reducing, and guarding against, the exposure.


Jack Bierig, CAP general counsel, is with the law firm Sidley Austin Brown & Wood LLP, Chicago.