Thomas A. Robinson on Recent Medical Malpractice Cases Relating to Workers' Compensation Claims: Physician's Negligent Administration of Paperwork; Laboratory's Improper Release of HIV Results
Anyone who thinks that workers' compensation law deals primarily with broken bones, low back injuries, and computations of average weekly wages has only to look at recent decisions from around the country to see that the issues examined within the "comp world" are as interesting and intricate as in most any other area of the law. This is particularly true where issues within the comp world intersect with those in tort law. Two recent decisions–one from Texas, the other from Florida–offer an interesting twist on medical malpractice claims, with the claimed injury in each case not being caused by any form of improper medical treatment, but rather by negligent or careless handling of paperwork associated with the worker's condition. This expert commentary, written by Thomas A. Robinson, examines the recent Texas case, Lowe v. Hernandez, 2007 Tex.App. LEXIS 4507 (Tex. Ct. App. June 7, 2007), and opines that the physician's liability for negligent administration is not at all unlike his or her liability for negligent treatment; both are based upon the duty owed by a physician to his or her patient. Robinson contrasts that duty with the duty owed by a health care provider that merely provides an independent opinion as to the claimant's condition, a "transaction" in which there is no actual physician-patent relationship. He shows that the only case law on point treats the two situations quite differently. Robinson further examines the Florida case, Florida Dept. of Corrections v. Abril, 2007 Fla. LEXIS 1902 (Oct. 18, 2007), in which an employer was recently held liable in tort for the negligent disclosure of the results of an employee's HIV test, and makes a sound argument that the employer might well have defended the case on exclusivity grounds.
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