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Click here for the full text of this decision FACTS:Jennifer Gay Dubose applied for a job that required her to get a pre-employment physical examination. Dubose went to Worker’s Medical, and was examined by the same physician whom Dubose saw earlier in the year for a skin ailment. Dr. Roquet took a chest x-ray, which he said was completely normal, and pronounced Dubose fit to work. Dubose’s employer sent her a letter summarizing the results of her physical and did not indicate any abnormality. A year later, in November 1999, Dubose went to an oncologist, complaining of anemia and night fevers. After reviewing her 1998 x-rays, which the oncologist said were “patently abnormal,” Dubose was diagnosed with Stage IV Hodgkins Lymphoma. Dubose sued Dr. Roquet and Worker’s Medical for fraud, negligent misrepresentation and breach of the duty not to injure. The trial court granted the defendants’ motion for summary judgment, which was based on their argument that Dubose’s claim was really one for medical malpractice, and that there was no physician-patient relationship between Dubose and Dr. Roquet. On appeal, Dubose claims the defendants did not meet their burden in proving that there was no physician-patient relationship. She also argues that even if a physician-patient relationship did not exist, Dr. Roquet owed her a duty not to injure her. HOLDING:Affirmed in part; reversed and remanded in part. The court rules that Dubose waived her right to argue that a physician-patient relationship was established by her visit for the skin ailment. She acknowledged that a pre-employment physical examination does not establish a relationship, but she didn’t mention her visit for the skin ailment in her response to the summary judgment motion, so she cannot raise the issue on appeal. Furthermore, the one-on-one meeting where Dr. Roquet delivered the results of the chest x-ray to Dubose establish a physician-patient relationship. Dubose did not assert that Dr. Roquet injured her in the course of the examination, the court points out. Therefore, she has not raised a fact issue on whether Dr. Roquet breached the duty not to harm her during her pre-employment examination. The court does, however, agree with Dubose that the defendants’ motion for summary judgment did not articulate any reasons for why her claim against Worker’s Medical should be dismissed. OPINION:Hudson, J.; Yates, Hudson and Edelman, JJ.

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