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Terry L. Smith v. Patrick L. Radecki

August 27, 2010

TERRY L. SMITH, APPELLANT,
v.
PATRICK L. RADECKI, M.D., APPELLEE.



Supreme Court No. S-13171 Superior Court No. 4FA-06-02657 CI Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.

The opinion of the court was delivered by: Christen, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.

I. INTRODUCTION

Terry Smith injured his back while working for CSK Auto, Inc. (CSK) and brought a workers' compensation claim. CSK arranged for Dr. Patrick Radecki to perform an independent medical examination to assess Smith's condition. Dr. Radecki examined Smith and reported that he had no physical injury resulting from the incident. But Smith later underwent an MRI which revealed several spinal problems, including a Tarlov cyst. Smith filed suit against Dr. Radecki. His complaint included claims arising from Dr. Radecki's alleged failure to discover the existence of the cyst and Smith's earlier "failed" back surgery. In the alternative, Smith alleged that Dr. Radecki did discover his true back condition but failed to report it. The superior court granted Dr. Radecki's motion for summary judgment, ruling that Dr. Radecki and Smith did not have the requisite physician-patient relationship upon which to base a medical malpractice claim, and that Smith's claims were barred by the statute of limitations. Because we conclude that all of Smith's claims were dependent upon him having a physician-patient relationship with Dr. Radecki, and Smith did not have a physician- patient relationship with Dr. Radecki, we affirm the superior court's ruling. We do not reach the statute of limitations issue.

II. FACTS AND PROCEEDINGS

On March 29, 2001, Terry Smith injured his back while working as a delivery driver for CSK. Unloading cases of antifreeze from the bed of his truck, Smith "lifted and twisted" to remove two cases that were strapped together and immediately experienced "pain in his back and leg that took his breath away." Smith sought medical attention the next day and was treated for "acute muscle strain." He received temporary total disability benefits from March 30, 2001, through April 13, 2001.

When Smith's pain did not improve, additional assessments were performed which revealed abnormalities at L5 and possible degenerative disc disease at L4-5. He underwent a variety of treatments including medication, physical therapy, participation in a work hardening program, and epidural steroid injection.*fn1 Smith was given some authorized time loss from work and then deemed partially disabled effective May 14, 2001. He returned to work in "a light duty capacity" from May 14 through July 8, 2001, but he continued to report symptoms including weakness, dizziness, disorientation, loss of consciousness, and pain. Smith began to miss work again and received additional temporary total disability benefits. But on August 14, 2001, Dr. Susan Klimow found Smith "medically stable." *fn2 Later that month Smith's treating doctors began to consider the possibility of psychological factors in his continuing complaints of pain, but physical interventions for his symptoms continued into 2003.*fn3

CSK arranged for Dr. Patrick Radecki to perform an independent medical examination (IME) of Smith on July 25, 2003. Dr. Radecki's report states that prior to conducting the examination he informed Smith (1) "that the purpose of the examination was to address specific injuries or conditions, as outlined by [CSK's insurance carrier]," (2) that the IME was "not a substitute for his/her personal physician(s) or health care," and (3) that "[n]o physician/patient relationship exists or is sought." Smith did not dispute that he received this statement describing the scope of Dr. Radecki's engagement.

The report Dr. Radecki prepared reflects his conclusion that Smith suffered from "[m]ild degenerative disc disease" in his "lumbar spine, including minimal disc bulge which [was] not . . . symptomatic," and exhibited "nonphysiologic pain behavior and multiple nonphysiologic responses to physical maneuvers . . . that should not cause pain, typical of psychogenic pain disorder, severe in nature." In his report Dr. Radecki stated that "there is no objective evidence of permanent partial impairment that can be said to have been caused by the March 29, 2001, incident," advised against further physical or pharmacological interventions, and suggested psychological treatment and weight loss.

Smith again reported severe pain symptoms during subsequent vocational rehabilitation and underwent an MRI at Fairbanks Memorial Hospital on November 8, 2004. The MRI revealed disc desiccation at the L5-S1, L4-L5, and L3-L4 levels, displacement of the left S1 nerve root, L5 limbus vertebra, and a small sacral Tarlov cyst.*fn4

On December 17, 2004, Smith filed a workers' compensation claim for ongoing medical bills and temporary total disability during recovery from anticipated back surgery. The claim alleged that the anticipated surgery would address pain arising from Smith's 2001 work-related injury. CSK controverted the claim, relying principally upon Dr. Radecki's conclusions that: (1) Smith was medically stable as of July of 2003; (2) Smith had no permanent impairment resulting from the 2001 injury; and (3) Smith did not require further medical treatment.

Smith filed suit against Dr. Radecki in the superior court in October 2006. His complaint included 18 claims that we group into three categories: (1) claims arising from Dr. Radecki's alleged failure to discover and properly treat his back condition;*fn5 (2) claims associated with the alternative theory that Dr. Radecki did discover the nature of Smith's back condition but did not report these ...


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