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
- 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
- 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
- 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
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
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
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
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
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.
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.