UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARCELLA JO ADAMS, Individually
and as Administratrix of the Estate
of Raymond Adams,
Plaintiff-Appellant,

and

RAYMOND ADAMS, Deceased,                                          No. 97-2547
Plaintiff,

v.

RAY A. HARRON; W. ALVA
DEARDORFF,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Dennis Raymond Knapp, Senior District Judge.
(CA-97-657-2)

Argued: June 7, 1999

Decided: September 13, 1999

Before MURNAGHAN, NIEMEYER, and LUTTIG,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gordon J. Dill, Ashland, Kentucky, for Appellant. D. C.
Offutt, Jr., OFFUTT, FISHER & NORD, Huntington, West Virginia,
for Appellee Harron; Fred B. Westfall, Jr., FLAHERTY, SENSA-
BAUGH & BONASSO, P.L.L.C., Charleston, West Virginia, for
Appellee Deardorff. ON BRIEF: Rodney S. Justice, Ashland, Ken-
tucky; Jeffrey L. Preston, Catlettsburg, Kentucky, for Appellant.
Aaron B. Alexander, MCQUEEN, HARMON & POTTER, L.L.C.,
Charleston, West Virginia, for Appellee Deardorff.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marcella Jo Adams brought this action both as widow of her hus-
band Raymond Adams and as executrix of his estate, alleging medical
malpractice and negligence by Dr. Ray Harron and Dr. W. Alva Dear-
dorff. She alleged that Dr. Deardorff failed to diagnose Raymond
Adams' cancer and that Dr. Harron failed to communicate his diagno-
sis to Adams. Finding that there was no doctor-patient relationship
between Raymond Adams and these doctors, the district court granted
the doctors' motion for summary judgment. We affirm.

As part of a client-solicitation process, the Charleston law firm of
Sutter & Enslein solicited current and former employees of Armco
Steel Corporation, in Ashland, Kentucky, offering to take free chest
x-rays for the purpose of determining whether the employees quali-
fied as plaintiffs in possible asbestosis litigation. Raymond Adams, a
retired employee of Armco, responded to the offer and had his chest
x-ray taken at a medical center in Ashland, Kentucky.

Sutter & Enslein collected the x-rays, numbering in the hundreds,
and delivered them to two radiologists, Dr. Harron, who maintained
his office in Bridgeport, West Virginia, and Dr. Deardorff, who main-
tained his office in South Charleston, West Virginia. The firm had
hired these doctors to interpret and classify the chest x-rays, using the

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standard ILO (International Labour Office) Classification System, to
report their findings on standard ILO forms, and to serve, as they had
often done previously, as expert witnesses at trial. The doctors were
paid a fixed fee for each x-ray interpreted.

Sutter & Enslein delivered one stack of x-rays to Dr. Deardorff in
December 1994, including the x-ray of Raymond Adams, and Dear-
dorff interpreted these x-rays in January 1995. He did not diagnose
Adams' x-ray as revealing any lung cancer. The firm also delivered
a stack of x-rays, including Adams' x-ray, to Dr. Harron in July 1995,
and Dr. Harron interpreted these x-rays that month. Dr. Harron noted
from Adams' x-ray that he might have cancer and notified Sutter &
Enslein of his finding, suggesting that Adams be told to see a family
doctor. Sutter & Enslein, however, never notified Raymond Adams of
this diagnosis or of Dr. Harron's recommendation to see a doctor.

Both Dr. Harron and Dr. Deardorff reviewed the x-rays in West
Virginia and delivered their reports to Sutter & Enslein in West Vir-
ginia. They never saw the individuals whose x-rays they were review-
ing, and they had no information about the individuals other than their
names.

About a year after Dr. Harron had discovered Adams' cancer,
Adams was diagnosed with cancer after having an unrelated x-ray by
his own doctor. On February 23, 1997, Adams died of lung cancer.
His wife, Marcella Jo Adams, brought this action in her capacities as
widow and as administratrix of Raymond Adams' estate.

Applying the law of West Virginia, the district court held that Mar-
cella Adams could not maintain a medical malpractice claim against
either Dr. Deardorff or Dr. Harron because neither entered into a
doctor-patient relationship with Raymond Adams. Accordingly, the
court granted Dr. Deardorff's motion for summary judgment and Dr.
Harron's motion to dismiss for failure to state a claim. This appeal
followed.

Because this case was filed in a federal district court in West Vir-
ginia, we follow West Virginia's choice of law rules in determining
what law to apply. See Klaxon Co. v. Stentor Electric Mfg. Co., 313
U.S. 487, 496-97 (1941). West Virginia follows the lex loci delicti

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choice of law rule which provides that the "substantive rights between
the parties are determined by the law of the place of injury." Vest v.
St. Albans Psychiatric Hosp., Inc., 387 S.E.2d 282, 283 (W. Va.
1989) (citation omitted); see also Blais v. Allied Exterminating Co.,
482 S.E.2d 659, 662 (W. Va. 1996); Perkins v. Doe, 350 S.E.2d 711,
713 (W. Va. 1986). Because the defendant doctors' relevant conduct
occurred entirely in West Virginia and they rendered their allegedly
defective opinions to Sutter & Enslein there, the alleged legal injury
to Raymond Adams occurred in West Virginia. See Weethee v. Holzer
Clinic, Inc., 490 S.E.2d 19, 20-21 (W. Va. 1997) (holding that a claim
for a defective sterilization procedure performed at a hospital in Ohio
accrued in Ohio, even though the plaintiff became pregnant and gave
birth to a genetically abnormal daughter in West Virginia).

In West Virginia, as elsewhere, "[t]he essence of a medical mal-
practice action is a physician-patient relationship." Rand v. Miller,
408 S.E.2d 655, 656 (W. Va. 1991). "Generally, it is axiomatic that
unless such a relationship is established, a legal duty cannot exist
between the parties." Gooch v. West Virginia Dep't of Pub. Safety,
465 S.E.2d 628, 637 (W. Va. 1995) (footnote omitted). In particular,
West Virginia makes clear that "a physician has no liability to an
examinee for negligence or professional malpractice absent a physi-
cian/patient relationship, except for injuries incurred during the exam-
ination itself." Rand, 408 S.E.2d at 658 (internal quotation marks and
citation omitted). Thus, to establish liability on the part of Drs. Harron
and Deardorff, Marcella Adams would have to demonstrate either that
there was a physician-patient relationship between Raymond Adams
and the doctors or that her husband was injured during an examina-
tion itself. Because Raymond Adams was not examined and therefore
not injured during any examination, the only question in this case is
whether there was a physician-patient relationship between Adams
and either of the defendant doctors. We hold that there was no such
relationship.

The defendant doctors were retained by a law firm to give that firm
consulting advice about which employees would qualify as plaintiffs
in their solicitation efforts for asbestos litigation. None of the employ-
ees x-rayed retained the doctors or even saw the doctors. Indeed, none
of them even knew who the doctors were. Similarly, the doctors had
no medical information about any of the individuals, nor even their

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addresses or telephone numbers. The doctors were retained as litiga-
tion consultants and were simply provided stacks of x-rays, with the
name of an employee on each x-ray, so that they could determine
whether the employee would qualify as a plaintiff in an asbestosis law
suit. It is clear that under West Virginia law there was no physician-
patient relationship between Raymond Adams and the defendant doc-
tors.

Because there was no physician-patient relationship, Marcella
Adams cannot maintain an action against them for medical malprac-
tice. Accordingly, we affirm the judgment of the district court.

AFFIRMED

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