Donald Landers brought this negligence action against his employer and against the doctor who performed his employment medical examination after both the employer and the doctor failed to advise Landers of the results of his chest x-ray. The trial court denied the doctor’s motion for summary judgment, finding that, under regulations adopted to implement the Occupational Safety and Health Act of 1970, 29 USC § 651 et seq., an employment examiner owes a duty to inform an examinee directly of all the results of an employment medical examination, including chest x-ray results which are not available until after the conclusion of the physical examination. Pursuant to the grant of his application for interlocutory review, the doctor appeals, contending he is entitled to judgment as a matter of law because an employment examiner owes no legal duty to an examinee. In addition, the doctor contends that Landers’ employer’s failure to provide Landers a copy of the x-ray report constitutes an intervening cause, entitling him to summary judgment. For the following reasons, we reverse. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 405 SE2d 474 1991. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Citation and punctuation omitted. Scott v. Cushman & Wakefield , 249 Ga. App. 264, 264-265 547 SE2d 794 2001. The record shows the following undisputed facts. For about 20 years, Landers worked for North Brothers, Inc. and NB Environmental, Inc. collectively, “North Brothers” as an insulation installer. As part of his job, Landers handled asbestos materials. Beginning in the early 1990′s, North Brothers, in accordance with OSHA regulations, required Landers to submit to a yearly medical examination with a physician it chose and compensated. At the relevant time, North Brothers had a contract with Work Horizons, an occupational medicine practice, to perform employment medical examinations. The purpose of the required examination was to examine each asbestos worker for signs of asbestos-related diseases such as lung cancer and to certify that he was physically capable of using a negative-pressure respirator. On January 29, 1998, Vincent Greico, a Work Horizons doctor, performed Landers’ annual employment medical examination which included a chest x-ray, pulmonary function or lung capacity test, and a physical examination of his upper body. Landers described the examination as brief and “limited,” consisting of the doctor asking how he felt, listening to his lungs and chest, and looking in his throat and ears. At the conclusion of the exam, Greico told Landers his pulmonary function test and physical examination were fine and gave Landers a written report titled “Physician’s Opinion” to take to North Brothers. In that document, Greico indicated that he had detected no medical conditions “that would place Landers at an increased risk of material health impairment from his planned ‘exposure to asbestos’ ” and that Landers was cleared to wear a respirator. Greico further certified that he informed Landers of the results of the examination and of any medical conditions that may result from asbestos exposure. Upon his return to work, Landers’ supervisor told him that he “ passed” the medical examination and was cleared to use a respirator.
In accordance with Greico’s routine practice, Landers’ x-ray was delivered to Work Horizon’s affiliated hospital to be evaluated by a qualified “B-reader” or Board-certified radiologist.1 The day after Landers’ physical examination, a radiologist examined Landers’ x-ray, noted a “vague opacity” in Landers’ lung, and recommended “fluoroscopy to clarify the x-ray and to exclude parenchymal nodule.” This was a serious finding for a patient who worked with asbestos, a known carcinogenic agent, and possibly indicated a life-threatening problem. Greico received this report and prepared a notice to North Brothers quoting the radiologist’s findings and recommendation and indicating that Landers needed follow up with his personal physician. Despite his intention of notifying Landers of the radiologist’s findings and recommendation, and despite having Landers’ home telephone number and address on file, Greico took no action to relay the radiologist’s report directly to Landers. Greico expected North Brothers to give Landers a copy of the notice.2 North Brothers personnel, however, put the notice in Landers’ personnel file without providing a copy to Landers.
