## Facts

- Sidney Rosenberg, age 51, was diabetic, had an eight-year history of heart disease, and previously suffered a heart attack.
- Rosenberg applied for life insurance with Equitable; due to his medical history, Equitable required an independent medical evaluation before issuing a policy.
- Equitable referred Rosenberg to Dr. Arora, a physician selected by Equitable and paid on a per-case basis as an independent contractor.
- The evaluation included a stress electrocardiogram (stress EKG) requested as part of completing the insurance application process.
- Plaintiff’s expert testified that, given Rosenberg’s prior heart attack, a stress EKG was potentially dangerous and contraindicated.
- After the examination, Rosenberg appeared pale and unwell; about a month later, he suffered a fatal heart attack at home.
- Rosenberg’s widow, individually and as estate administratrix, sued Equitable alleging (1) vicarious liability for Dr. Arora’s negligence under the inherently dangerous work exception, and (2) Equitable’s direct negligence in ordering the test and failing to obtain informed consent.
- A jury found for plaintiff on both theories; the intermediate appellate court affirmed. Equitable appealed.

## Issues

1. Whether an insurer may be held vicariously liable for an independent-contractor physician’s alleged negligence under the inherently dangerous work exception based on ordering a stress EKG for a high-risk applicant.
2. Whether an insurer owes a common-law duty to disclose medical risks and obtain informed consent for an insurer-required medical examination, supporting direct negligence liability.

## Decision

- The Court of Appeals reversed and dismissed the complaint.
- The inherently dangerous work exception did not apply because administering a stress EKG by a qualified physician is not inherently dangerous as a matter of law.
- Equitable owed no common-law duty to explain the risks of the examination or obtain informed consent; those obligations rested with the examining physician.

## Legal Principles

- An employer is generally not liable for an independent contractor’s negligence; the inherently dangerous work exception is limited and does not extend to routine diagnostic medical testing performed by licensed professionals.
- A diagnostic test is not “inherently dangerous” merely because negligent performance can cause harm; the relevant risks are addressed through the physician’s professional judgment and standards of care.
- A party referring an individual to an independent physician for an examination is not required to anticipate that a competent physician will depart from professional standards.
- The common-law duty to disclose medical risks and obtain informed consent arises from the physician–patient relationship and is ordinarily borne by the physician, not by a nonmedical entity requiring the exam.

## Conclusion

The court held that an insurer that requires and arranges a medical examination through an independent physician is neither vicariously liable under the inherently dangerous work exception for the physician’s alleged negligence nor directly liable for failing to secure informed consent, because the stress EKG was not inherently dangerous as a matter of law and informed-consent duties belong to the physician.


Rosenberg v. Equitable Life Assurance Soc’y of U.S., 595 N.E.2d 840 (N.Y. 1992)