Sterling v. Johns Hopkins Hospital

RAYMOND G. THIEME, Jr., Judge, Retired, Specially Assigned. Appellants were plaintiffs in two medical malpractice actions that were filed against defendants in the Circuit Courts for Baltimore City and Wicomico County. The complaints alleged negligence against Peninsula Regional Medical Center (PRMC), Floyd Gray, M.D., a doctor with PRMC, and the Johns Hopkins Medical Center for malpractice in the diagnosis and treatment of complications surrounding the late Láveme Sterling’s pregnancy. 1 The complaints alleged that the ¹⁶⁴ Johns Hopkins Medical Center was negligent in transferring Ms. Sterling from PRMC to Johns Hopkins Hospital in her unstable condition and that this negligent act contributed to her death. The actions against Dr. Gray and PRMC were settled, after ■ summary judgment motions filed by those parties were denied, leaving Johns Hopkins as the sole remaining defendant.

On July 22, 1999, Hopkins had filed a Motion for Summary Judgment, asserting as its principal ground for relief the absence of a physician-patient relationship between , its physician and Ms. Sterling. A hearing on the motion was convened, and after argument and consideration of the pleadings, the circuit court entered summary judgment in favor of Hopkins, denied appellants’ Motions for Reconsideration on March 27, 2000, and appellants noted this appeal on April 20, 2001. We have jurisdiction pursuant to Md.Code (1974 and 1998 RepLVol.) §§ 12-301, 12-308 of the Courts and Judicial Proceedings Article. Issue on Appeal On appeal, appellants ask us to determine whether the circuit court erred in granting summary judgment in favor of the appellee, Johns Hopkins Hospital.

We affirm the circuit court and explain. Facts On August 2, 1993, Láveme Sterling was admitted to the PRMC. At the time she was 32.6 weeks pregnant and her personal physician recommended admission to the hospital due to borderline blood pressure and the presence of protein in her urine (proteinuria). Ms. Sterling also presented with edema (swelling due to fluid retention), hypertension, abdominal pain, nausea, and vomiting. ¹⁶⁵ On August 3rd, Ms. Sterling came under the care and treatment of Dr. Floyd E. Gray.

By this time, her condition had deteriorated and she had developed hematuria (blood in the urine) and bleeding in her mouth. Dr. Gray ordered labwork and a CT scan of the abdomen. Dr. Gray rendered a presumptive diagnosis of severe pre-eclampsia and a potential HELLP syndrome. 2 As a result of the initial diagnosis, Dr. Gray ordered a magnesium-sulfate intravenous infusion for Ms. Sterling. The diagnoses of severe pre-eclampsia and HELLP syndrome were later confirmed around 12:30 p.m.

Due to this confirmation, Dr. Gray contacted the Emergency Medical Resource Center (EMRC) to arrange for the transfer of Ms. Sterling to another hospital. 3 The transfer was deemed necessary because PRMC did not have a neonatal intensive care unit at this time and there was concern that Ms. Sterling’s condition might require a premature delivery of the child. EMRC informed Dr. Gray that Hopkins was the perinatal referral center that he should contact. 4 ¹⁶⁶ Upon being connected with Hopkins Hospital, Dr. Gray spoke with Dr. Erica Leventhal, a Hopkins resident. Dr. Gray informed Dr. Leventhal of Sterling’s symptoms (hypertension, hematuria, proteinuria, elevated liver enzymes, severe abdominal pain, nausea and vomiting) and informed Dr. Leventhal that he had placed Sterling on a magnesium sulfate drip. Dr. Leventhal conveyed this information to the attending physician, Dr. Adib Khouzami.

Dr. Khouzami, in turn, telephoned Dr. Gray at approximately 1:10 p.m. During the conversation, it was decided that Sterling would be transferred to Hopkins through the Maryland Institute for Emergency Medical Services System (MIEMSS) perinatal referral program. According to MIEMSS protocol, Dr. Gray informed Dr. Khouzami that Sterling was diagnosed as having severe pre-eclampsia, was receiving magnesium sulfate, and was also diagnosed as having HELLP syndrome due to her hematuria and bleeding. Dr. Gray also conveyed Sterling’s laboratory test results.

Dr. Khouzami recorded this information on the Hopkins Maternal Transport Log. Having determined that Hopkins had the resources available to care for Sterling, it was agreed that she be transferred to the hospital by ambulance, in compliance with MIEMSS procedure. 5 Dr. Gray thereafter arranged for the transportation of Sterling to Hopkins through a local ambulance company. Sterling’s condition continued to deteriorate during this interval. At approximately 3:00 p.m., while en route to Hopkins, Sterling became unresponsive.

The ambulance was diverted to Memorial Hospital in Easton, Maryland, where it was discovered that Sterling had suffered an intraventricular hem ¹⁶⁷ orrhage. An emergency cesarean section was performed at Easton Memorial Hospital to deliver Sterling’s infant daughter. Sterling was airlifted to the University of Maryland where she died on August 5th as a result of the hemorrhage. This litigation ensued.

Before trial in this matter, the defendants filed motions for summary judgment. Johns Hopkins asserted its entitlement to summary judgment because its representative physician, Dr. Khouzami, did not have a physician/patient relationship with Laverne Sterling. Maintaining that this predicate for the hospital’s legal duty to the decedent was absent, it contended that it was entitled to judgment as a matter of law. Discussion Appellants maintain that Dr. Khouzami established a physician-patient relationship, and that, as a result, Hopkins had a legal duty toward Ms. Sterling such that it must answer for its negligence.

They contest the entry of summary judgment against them, asserting that the question of whether Hopkins owed a duty of care to Ms. Sterling constitutes a genuine issue of material fact. Appellants further aver that a physician-patient relationship was established under the facts of this case, and insist that “face-to-face” contact between a doctor and patient is not a necessary prerequisite for the establishment of the legal relationship between physician and patient. In this case appellants also assert that they have raised genuine issues of material facts that must be resolved at trial, and contend that, as a result, summary judgment would be inappropriate in this instance. Summary Judgment Summary judgment is appropriate where there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.

Md. Rule 2-501(a). When ruling on a motion for summary judgment, a court must view the facts, including all inferences drawn therefrom, in the light most favorable to the opposing party. Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676 , 766 A.2d 617, 621 (2001). “ ‘A ¹⁶⁸ material fact is a fact the resolution of which will somehow affect the outcome of the case.’ ” Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206, 209 (2001) (quoting King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608, 614 (1985)). The moving party bears the burden of establishing the absence of a genuine issue of material fact.

See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970). We are mindful that, as Judge Smith observed in Porter v. General Boiler Casing Co., 284 Md. 402 , 396 A.2d 1090 (1979), “if [the] facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law[.]” Id. at 413 , 396 A.2d at 1096 (quoting Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 ; 265 A.2d 256 ; 258 (1970)). But where there is no dispute as to any material fact presented, summary judgment is appropriate to resolve purely legal questions. See, e.g., Hobbs v. Teledyne Movible Offshore, Inc., 632 F.2d 1238, 1240 (5th Cir. Unit A 1980).

We exercise plenary review over the circuit court’s decision to grant'summary judgment. See generally Lippert, 366 Md. at 227 , 783 A.2d at 209 . General Principles • ■ ■ I. : ' “The general principles which ordinarily govern in negligence cases also apply in medical malpractice claims.” 6 ¹⁶⁹ Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 190 , 349 A.2d 245, 247 (1975). The Court of Appeals has recently rehearsed the elements for negligence in Maryland: In order to establish a claim for negligence under Maryland law, a party must prove four elements: “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 85 , 782 A.2d 807, 841 (2001) (footnote and emphasis omitted) (quoting Rosenblatt v. Exxon, 335 Md. 58, 76 , 642 A.2d 180, 188 (1994)).

The threshold element is the question of whether the defendant owes a legal duty towards the injured party. Assuming the existence of this element, a plaintiff may establish a prima facie case for medical negligence by proving “(1) the applicable standard of care; (2) that this standard has been violated; and (3) that this violation caused the complained of harm.” Jacobs v. Flynn, 131 Md.App. 342, 354 , 749 A.2d 174, 180 , cert. denied sub nom. Kishel v. Jacobs, 359 Md. 669 , 755 A.2d 1140 (2000). The duty of care owed to an individual in the medical context is based primarily on the existence of the physician-patient relationship.

As stated by Judge Karwaeki, commenting in a general negligence case in Valentine v. On Target, Inc., 353 Md. 544 , 727 A.2d 947 (1999), “[ijnherent ... in the ¹⁷⁰ concept of duty is the concept of a relationship between the parties out of which the duty arises.” Id. at 551 , 727 A.2d at 950 . We said in Miller v. Schaefer, 80 Md.App. 60 , 559 A.2d 813 (1989), aff'd, 322 Md. 297 , 587 A.2d 491 (1991), that “[bjefore a physician may be found liable for an act of medical malpractice, it is essential that a patient-physician relationship be in existence at the time the alleged act occurred.” Id. at 73, 559 A.2d at 819 . It is a basic principle of law that, with the exception of circumstances where a doctor acts gratuitously or in an emergency situation, recovery for malpractice is permitted only when a physician-patient relationship has been established, and that there has been a “breach of professional duty to the patient.” Dingle v. Belin, 358 Md. 354, 367 , 749 A.2d 157, 164 (2000) (quoting Hoover v. Williamson, 236 Md. 250, 253-254 , 203 A.2d 861, 862 (1964)).

II

Maryland has recognized that the existence, of a duty constitutes a legal determination. The Court of Appeals in Valentine stated: Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court. 353 Md. at 549 , 727 A.2d at 949 ; see also Davis v. Johns Hopkins Hospital, 330 Md. 53, 64 , 622 A.2d 128, 133-34 (1993). Other jurisdictions are in accord. See, e.g., Irvin v. Smith, 272 Kan. 112 , -, 31 P.3d 934, 942 (2001); Adams v. Via Christi Regional Medical Center, 270 Kan. 824, 834 , 19 P.3d 132, 139 (2001); St. John v. Pope, 901 S.W.2d 420, 424 (Tex.1995); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 525 , 111 Ill.Dec. 944 , 513 N.E.2d 387, 396 (1987); Lection v. Dyll, 65 S.W.3d 696, 704 (Tex.App.-Dallas 2001); Oja v. Kin, 229 Mich.App. 184, 187 , 581 N.W.2d 739, 741 (1998); Reynolds v. Decatur Memorial Hospital, 277 Ill.App.3d 80, 84 , 214 Ill.Dec. 44 , 660 N.E.2d 235, 238 (1996); ¹⁷¹ Hill v. Kokosky, 186 Mich.App. 300, 302 , 463 N.W.2d 265, 266 (1990), appeal denied, 438 Mich. 873 (1991); cf. Cohen v. Cabrini Medical Center, 94 N.Y.2d 639, 642 , 709 N.Y.S.2d 151 , 730 N.E.2d 949, 951 (2000) (resort to common concepts of morality, logic and social consequences). 7 Application of Principles to this Case We must now decide whether the circuit court erred in concluding, as a matter of law, that a duty did not exist on behalf of Johns Hopkins.

Appellants contend that a physician-patient relationship was established between Johns Hopkins Hospital and Láveme Sterling. Indeed, we acknowledge that both Maryland law and the law of other jurisdictions recognize the creation of such a relationship absent an express contract between the physician and patient. Appellants, how ¹⁷² ever, farther assert that this Court should find a physician-patient relationship under the facts of this case. We disagree.

It is beyond cavil that a physician-patient relationship may be created through an implied contract. This Court, in Miller v. Schaefer, noted: The relationship between a physician and patient may result from an express or implied contract, either general or special, and the rights and liabilities of the parties thereto are governed by the general law of contract, although the existence of the relation does not need to rest on any express contract between the physician and person treated. However, the voluntary acceptance of the physician-patient relationship by the affected parties creates a prima facie presumption of a contractual relationship between them. Miller v. Schaefer, 80 Md.App. at 73-74 , 559 A.2d at 819 (footnotes omitted) (quoting 61 Am.Jur.2d, Physicians, Surgeons, Etc., § 158 (1981)).

Miller does not dictate the results sought by appellants in this case, but articulates in general the rule as to the creation of the physician-patient relationship. We went on to hold in Miller that a contractual relationship between the parties arose when the patient accepted the physician’s diagnosis and advice on the proper course of treatment. Id. at 75 , 559 A.2d at 820 . This relationship thus created a duty on behalf of the physician to treat the patient properly, as well as a duty to inform the patient as to the procedure to be used and risks involved.

Id. Appellants’ Cases: McKinney and Wheeler ■ Appellants rely on two cases from other jurisdictions, which closely resemble the facts before us, to urge that we rule that a physician-patient relationship existed between Ms. Sterling and the appellees, thus leading to the conclusion that Hopkins owed a duty of care to her. In Wheeler v. Yettie Kersting Memorial Hospital, 866 S.W.2d 32 (Tex.App.-Houston [1st Dist.] 1993, no writ), the patient, Mrs. Wheeler, then eight months pregnant, contacted ¹⁷³ emergency medical technicians (EMTs) to transport her to John Sealy Hospital, located 90 miles away in Galveston. 8 The EMTs first took her to the Yettie Kersting Memorial Hospital in Liberty, Texas, the nearest medical facility, for an assessment to determine whether she could safely travel to John Sealy. One of the EMTs was doubtful about Mrs. Wheeler’s chances of making the journey without giving birth.

Upon her arrival at Yettie Kersting, Mrs. Wheeler was assessed by two nurses. Their findings were communicated by telephone to Dr. Rodriguez, an on-call general practitioner with staff privileges. The nurses also telephoned John Sealy Hospital and communicated the information to an unidentified doctor there. That doctor instructed them to transport the patient “on her side” to John Sealy.

Dr. Rodriguez approved the transfer. Both EMT technicians expressed concern about the journey, but were instructed by a nurse to “put the patient in the ambulance, turn on the lights and sirens and go.” 866 S.W.2d at 35 . During the course of the trip, there was a breech birth, and the baby died. Mrs. Wheeler subsequently brought suit against both hospitals and the staff of Yettie Kersting.

The hospitals subsequently moved for summary judgment and the trial court granted the motion on all causes of action. The case eventually was presented to the First District Court of Appeals in Houston on the basis of certain counts disposed of in summary judgment. One such issue concerned the relationship that existed between Dr. Rodriguez and the appellant. In concluding that a physician-patient relationship existed between the parties, the Court stated: Dr. Rodriguez was not asked, nor did he refuse to come in to examine the patient.

Instead, he was asked to evaluate certain information and make a medical decision ... [H]e willingly agreed to do so. We conclude that in evaluating the status of Mrs. Wheeler’s labor and giving his approval, ¹⁷⁴ [Dr. Rodriguez] established a doctor-patient relationship with Mrs. Wheeler and accepted the duties which flow from such a relationship, specifically the duty to comply with the applicable standard of care for a physician in an on-call capacity at a rural hospital in transferring an obstetrical patient to a distant facility. Id. at 39-40 . The Court further noted: It is axiomatic that a doctor-patient relationship may arise from, briefly exist, and be limited by the unique circumstances presented in a transfer situation.

Otherwise, a hospital’s requirement for physician approval of patient transfers would require the patient to subject herself to the physician’s medical decision whether to transfer her without imposing any obligation on the physician to make that decision in a responsible manner. Id. n. 6. The Court of Appeals reversed the summary judgment that had been entered in favor of Dr. Rodriguez on the basis that no physician-patient relationship had existed. 866 S.W.2d at 40 . Appellants also advance as support for their position the opinion from the Ohio Court of Appeals in McKinney v. Schlatter, 118 Ohio App.3d 328 , 692 N.E.2d 1045 (1997), to propose that a physician-patient relationship be created by implication under the circumstances found here.

The Ohio Court of Appeals determined that the “lack of direct contact” between patient and doctor does not preclude the establishment of a physician-patient relationship. It established a three-part test to gauge whether such a relationship would come into existence: We therefore hold, and in doing so are mindful that we are elaborating in the field of medical malpractice, that a physician-patient relationship can exist by implication between an emergency room patient and an on-call physician who is consulted by the patient’s physician but who has never met, spoken with, or consulted the patient when the on-call physician (1) participates in the diagnosis of the patient’s ¹⁷⁵ condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff or patient for whose benefit he is on call. Once an on-call physician who has the duty to the hospital, its staff, or patients is contacted for the benefit of an emergency room patient, and a discussion takes place between the patient’s physician and the on-call physician regarding the patient’s symptoms, a possible diagnosis and course of treatment, a physician-patient relationship exists between the patient and the on-call physician. Id. at 336-37 , 692 N.E.2d at 1050 .

In McKinney , a patient sought treatment at a hospital due to chest and abdominal pains. The attending physician examined the patient and conducted tests but could not confirm the nature of the pains. Consequently, he telephoned the home of the on-call cardiologist, who had a duty to the hospital. After discussing the symptoms, test results, and X-rays, the cardiologist concluded that the problem was not cardiac in nature.

He requested more testing, after which he reiterated his opinion that the problem was not cardiac in nature. The cardiologist advised the attending physician to continue observation, and that physician thereafter instructed the patient to make an appointment with his family doctor and discharged him. The patient subsequently died of an aortic aneurysm. On appeal from a directed verdict against the patient’s estate in subsequent litigation, the Ohio Court of Appeals, in applying its “three-pronged” test, concluded that “reasonable minds” could come to different conclusions as to whether a physician-patient relationship existed “between the principals in that case.” The doctor “participated in McKinney’s course of treatment,” the Court said, even “participat[ing in the course of treatment] ... negatively by precluding cardiac treatment....” 118 Ohio App.3d at 337 , 692 N.E.2d at 1051 .

The cardiologist had been consulted by the attending physician “for the purpose of ruling out a heart attack.” He discussed the patient’s test findings and information with the attending physician. The Court of Appeals was also impressed by the fact that the doctor in question was “on-call for ¹⁷⁶ his group.” Id. The Court of Appeals subsequently reversed the directed verdict that had been entered for the defendant cardiologist on the grounds that a relationship had been formed under its three-pronged test. The Ohio Supreme Court has subsequently rejected the McKinney three-part test.

In Lownsbury v. VanBuren, 94 Ohio St.3d 231 , 762 N.E.2d 354 (2002), that court was faced with the issue of whether a supervisory physician at a teaching hospital may be held to a physician-patient relationship even where that doctor had neither direct nor indirect contact with the patient. Even though the recognition of a duty of care in the context of a supervisory physician for a teaching hospital presents a relatively unique situation, the court’s discussion and review of authorities which do not involve direct patient-physician contact is helpful. The lower court in Lownsbury had concluded that there was insufficient evidence to raise a genuine issue of .material fact as to the existence of a physician-patient relationship. Among the authorities brought to that court’s attention was McKinney and its three-part test for a physician-patient relationship.

The Ohio Supreme Court then explained what the Court of Appeals had stated in McKinney : ... The court in McKinney did not hold that a physician-patient relationship can be created despite the lack of any contact between the physician and the patient. Instead, the court found that , the “lack of direct contact between the patient and the on-call physician does not, in itself, preclude a physician-patient relationship.” ... [T]he McKinney test requires the plaintiff to show that the physician actually participated in the patient’s care and wa's obligated to do so. In other words, even where an on-call' ' physician is contractually obligated to perform the services at issue, the physician-patient relationship cannot ' be established unless it appears that the physician was actively involved in caring for the patient.' 94 Ohio St.3d at 240 , 762 N.E.2d at 361-62 .

After explaining the McKinney three-part test, the Ohio Supreme Court then ¹⁷⁷ rejected it, finding the test to be “incongruous, for it actually subsumes the ultimate question of duty.” Id. The Ohio Supreme Court concluded, after surveying pertinent case law, that the “basic underlying concept is that a physician-patient relationship, and thus a duty of care, may arise from whatever circumstances evince the physician’s consent to act for the patient’s benefit.” Id. at 238, 762 N.E.2d at 360 . Such consent may take the form of a physician’s accord with an institution to provide care for its patients, or “certain actions that indicate knowing consent, such as examining, diagnosing, treating, or prescribing treatment for the patient.” Id. at 240 , 762 N.E.2d at 362 . The court further concluded that physicians who practice in the “institutional environment may be found to have voluntarily assumed a duty of supervisory car e[.]” Id. at 238 , 762 N.E.2d at 360 .

Other Cases There is a paucity of Maryland authority that addresses the formation of a physician-patient relationship where there is no direct contact with the patient. There are, however, numerous decisions from other courts that will help us to navigate to avoid Scylla without being gulped by Charybdis. In Prosise v. Foster, 261 Va. 417 , 544 S.E.2d 331 (2001), the issue was “whether an on-call attending physician for a teaching hospital owed a duty of care to a patient based upon a physician-patient relationship in the absence of direct contact with or consultation concerning the patient.” 261 Va. at 419 , 544 S.E.2d at 331 . Dr. Foster, the on-call physician to the hospital emergency room, although not physically present, was available to answer questions from treating residents and interns.

The child was taken to the hospital with chicken pox lesions in her mouth. She was examined by two residents, who did not call Dr. Foster, and was treated for dehydration and released with instructions that she be taken to her pediatrician the following day. The next day, her pediatrician ordered the child returned to the hospital. Dr. Foster then saw the child for the first time, determined that she suffered from an ¹⁷⁸ infection due to a systemic effect of the chicken pox, and ordered IV anti-viral medication.

This treatment was unsuccessful, and the child died. In the resulting malpractice action, the trial court entered judgment in favor of the doctor, ruling that “there was no ‘minimum contact’ between Dr. Foster and [the child] and, therefore, no physician-patient relationship existed[]” when the doctor was “on call.” The plaintiffs appealed, asserting that such a relationship did exist because Dr. Foster agreed to be on-call, thus accepting the child as her patient. The Virginia Supreme Court disagreed. The plaintiffs also asserted that a provision of the Virginia Code, which requires that medical students may work in hospitals only under supervision of a licensed physician, and that the “attending physician” retains the responsibility to assure the completion of a History and Physical by a licensed physician, created a statutory physician-patient relationship.

Again, the Virginia Court disagreed. 261 Va. at 422 , 544 S.E.2d at 333 . The plaintiffs then urged the Virginia court to follow the decision by the North Carolina Supreme Court in Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182 , 415 S.E.2d 341 (1992). That court held that an on-call attending physician had a common law duty to supervise residents who provided medical care, even though the supervision did not fit traditional notions of the physician-patient relationship. The defendant physician in Prosise , on the other hand, relied on this Court’s decision in Rivera v. Prince George’s County Health Dept., 102 Md.App. 456 , 649 A.2d 1212 (1994), cert. denied, 338 Md. 117 , 656 A.2d 772 (1995), which disagreed with the North Carolina Supreme Court, stating that it would impose no duty in the absence of proof that the doctor had accepted the patient, or had been summoned for consultation or treatment, “unless the ‘on-call’ agreement between a hospital and a physician provides otherwise.” 102 Md.App. at 498 , 649 A.2d at 1232 .

In upholding the trial court, the Virginia Supreme Court agreed with this Court’s analysis in Rivera , and determined ¹⁷⁹ that it must “look to the record to determine whether it contains any facts which indicate that Dr. Foster, by virtue of her actions or her status as the on-call attending physician for the [hospital], agreed to accept responsibility for the care of [the child].” 261 Va. at 423 , 544 S.E.2d at 334 . The Supreme Court concluded that the trial court did not err in holding that there was no physician-patient relationship “because the evidence failed to show a consensual relationship in which the patient’s care was entrusted to the [on-call] physician and the physician accepted the case.” Id. at 424 , 544 S.E.2d at 334 . The Court noted that Dr. Foster did not participate in any treatment decisions, and had not been consulted by the treating physician or staff about the patient’s condition. In Irvin v. Smith, 272 Kan. 112 , 31 P.3d 934 (2001), the patient brought a malpractice action against, inter alia, a child neurologist who had been consulted in connection with an undiagnosed ventriculoperitoneal shunt malfunction.

The patient was a 12-year old who had received a shunt shortly after birth in order to relieve cerebral fluid pressure. She started to develop flu-like symptoms and seizures, and neck and back pain. She originally was admitted to a hospital in Ulysses, Kansas, then transferred to a medical center in Kansas City. Tests showed no abnormalities, and the patient was discharged- The patient developed the same problems the following month.

Some x-rays and other diagnostic procedures up to this point had yielded negative results, but when the patient was admitted to Wesley Medical Center, radiographs showed that the shunt was in need of repair. The treating physician could not recall whether he had seen the films which demonstrated this condition. The treating physician called the neurologist for a “consult.” They discussed performing a shuntogram the following day to determine whether there had developed any blockage. Before this procedure was conducted the next morning, the patient developed severe symptoms, and suffered permanent and severe brain damage.

A lawsuit was filed on her behalf. ¹⁸⁰ The trial court granted summary judgment in favor of the neurologist, ruling that a physician-patient relationship had not been established in his case. On appeal, the Kansas Supreme Court affirmed. The Court initially observed that the question of whether a physician-patient relationship exists is a question of fact. The Court also stated: The existence of the duty of care is dependent on the existence of a physician-patient relationship.... [citing cases] Courts have concluded, as has this court, that whether a physician-patient relationship exists is generally a question of fact for the jury____[citing cases] Generally, a physician-patient relationship is created only where the physician personally examines the patient....

A physician’s indirect contact with a patient, however, does not preclude the finding of a physician-patient relationship.... Indeed, an implied physician-patient relationship may be found where the physician gives advice ... through another health care professional, [citing case] A physician who gives an “informal opinion,” however, at the request of a treating physician, does not owe a duty to the patient because no physician-patient relationship is created. [citations] A physician who assumes the role of treating the patient, however, can be liable for medical malpractice. Irvin , 272 Kan. at -, 31 P.3d at 940-41 . The Court concluded that “the doctor must take some affirmative action with regard to treatment of a patient in order for the relationship to be established.” Id.

The Court determined that no duty had been created-no physician-patient relationship had been established. The neurologist had not examined the patient, nor had he reviewed her chart or spoken with her parents. His sole source of information was what had been relayed to him by the treating ¹⁸¹ physician. He entered no orders in the case and took no other action.

The Irvin Court noted that courts have taken public policy concerns to heart and have refused to extend liability to doctors who have acted solely as an informal consultant, even where their participation in the case is extensive. See NBD Bank v. Barry, 223 Mich.App. 370, 566 N.W.2d 47 (1997), appeal denied, 458 Mich. 864 , 582 N.W.2d 835 (1998) (attending physician contacted the consultant frequently, and consultant viewed patient’s chart, and made recommendations, which treating physician was free to accept or reject). In Adams v. Via Christi, ante, the Kansas Supreme Court determined that the consultant owed a duty to the patient in that case, and was thus subject to liability. The consultant in Adams discussed the case with the decedent’s mother, who had called him about her daughter’s pregnancy, and offered a medical opinion.

He had been the treating family physician and the court concluded that his earlier physician-patient relationship was “renewed.” The doctor had “tak[en] some action to give medical assistance.” Id. at 837 , 19 P.3d at 141 . In Oja v. Kin, 229 Mich.App. 184 , 581 N.W.2d 739 (1998), appeal denied, 459 Mich. 988 , 593 N.W.2d 559 (1999), the Michigan Court of Appeals held that a doctor’s consent to form a physician-patient relationship may not be implied merely from the doctor’s status as an on-call physician. The plaintiffs decedent had been brought to the Oakland Hospital emergency room with a gunshot wound to the jaw. The defendant osteopath was the on-call ENT specialist whom the attending physician had called for assistance.

When reached at home with details about this emergency, he refused to come to the hospital, claiming that he was ill. The resident on duty at the emergency room called Dr. Kin twice more. Each time that “on-call” expert declined to come to the hospital. The patient was examined by a number of physicians at the hospital before transfer to the Detroit Receiving Hospital, where he died in surgery. ¹⁸² The executrix filed suit against Dr. Kin and others, asserting negligence.

The trial court granted summary disposition for the doctor. The plaintiff appealed, and contended that she raised a genuine issue of material fact regarding the existence of a physician-patient relationship between the doctor and her decedent. She advanced alternative theories for recovery: the doctor formed a