Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Boomer, J.P., Green, Pine, Lawton and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of third-party defendant, James Upson, M.D., for summary judgment. Plaintiff was injured at work and he sued the manufacturer of the conveyor belt that caused his injuries. Plaintiff was examined by Dr. Upson on behalf of the workers' compensation carrier for the employer. At an examination before trial, plaintiff testified that Dr. Upson told him to stop taking an anticoagulant drug, that he and his treating physician relied upon that advice and that, as a result, plaintiff discontinued the use of the drug. Dr. Upson's report to the insurance carrier states that plaintiff was on anticoagulant therapy "and discontinued this on my recommendation." After discontinuing the anticoagulant, plaintiff developed phlebitis and the manufacturer of the conveyor belt served a third-party summons and complaint upon Dr. Upson, contending that his actions in causing plaintiff to discontinue the use of the anticoagulant caused an aggravation of plaintiff's injuries.
Where an injured party is examined by a physician acting on behalf of an insurance carrier, the physician is not liable for failure to diagnose an existing condition because the doctor "neither offers nor intends to treat, care for or otherwise benefit" the person examined, and has no reason to believe the person examined will rely upon the report (Johnston v Sibley, 558 S.W.2d 135, 137-138 [Tex Civ App]). Here, however, the physician went beyond his engagement as an examiner on behalf of the insurance carrier; he undertook to benefit plaintiff by giving medical advice to him directly. Moreover, a jury could find he had reason to believe that plaintiff would rely upon that advice because he later had a telephone conversation with plaintiff's treating physician in which he reconfirmed that advice. Here, as in Credit Alliance Corp. v Andersen Co. ( 65 N.Y.2d 536, 550), Dr. Upson, although not retained by plaintiff, imparted information directly to him and engaged in conduct which evinced an understanding that plaintiff would rely upon that information, or so a jury could find.