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Cynthia Lynn Mead v. Legacy Health System

July 26, 2012


On review from the Court of Appeals.*fn1 CC 0402-01947; CA A130969;

The opinion of the court was delivered by: Kistler, J.

En Banc

Argued and submitted February 9, 2011.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

De Muniz, J., concurred and filed an opinion.

Walters, J., dissented and filed an opinion.


An emergency room doctor telephoned defendant (an on-call neurosurgeon) to ask his advice about plaintiff, who had come into the emergency room for treatment. When plaintiff later sued defendant for malpractice, the jury returned a verdict in defendant's favor; the jury found that defendant was not acting as plaintiff's doctor and, as a result, owed her no duty. The Court of Appeals reversed, holding that the trial court should have directed a verdict in plaintiff's favor on that issue. Mead v. Legacy Health System, 231 Or App 451, 464, 220 P3d 118 (2009).We allowed defendant's petition for review to consider that issue. Because we conclude that, on this record, the jury could find that defendant was not acting as plaintiff's doctor, we uphold the trial court's ruling denying plaintiff's motion for a directed verdict. We also conclude, however, that the trial court erred in instructing the jury and, for that reason, agree that the case must be remanded for a new trial.*fn2

The relevant facts can be summarized briefly.*fn3 On July 1, 2002, defendant was the on-call neurosurgeon for Legacy Good Samaritan and Legacy Emanuel Hospitals. That day, defendant received a telephone call from a male resident, asking for advice about a patient who had come into the emergency room. The resident told defendant that "they had a patient who [had come into the emergency room who] had bad back pain, who was neurologically intact, who had [an] MRI with a disk bulge and who had normal rectal tone."

Defendant understood that the resident was "ask[ing] for [his] advice * * * to determine at this time whether the patient needs to be seen by a neurosurgeon," and defendant's advice was "to admit the patient to the medical service for pain management." Defendant testified at trial that, based on the information that the resident had provided him, he concluded that the patient did not need neurosurgery at that time -- a conclusion that was implicit in his advice to admit the patient for pain management. The resident did not ask defendant to see the patient, and defendant testified that he did not "do anything or say anything to communicate to the resident that [he was] somehow going to embark and become involved in the treatment of this patient[.]"

Consistently with his statement that he did not do or say anything to become involved in plaintiff's treatment, defendant did not admit plaintiff to the hospital under his care. Rather, plaintiff's primary care physician, Dr. Kisor, admitted plaintiff to the hospital under her care. (At Legacy, the physician who admits a patient to the hospital is responsible for the patient's care.) Later that day, plaintiff's condition worsened, and Kisor asked a neurologist, Dr. Leonard, for his assistance. Leonard previously had treated plaintiff for migraine headaches, and he consulted with Kisor to determine the cause of plaintiff's worsening condition. Their attempts to determine the cause of plaintiff's condition were not successful, and her condition continued to deteriorate over the next few days.

On July 4, Kisor's nurse called defendant to ask if he would see plaintiff. The nurse did not say that the request was urgent, and defendant asked the nurse to have Kisor call him. Defendant did so for two reasons. As a general matter, when asked to see another doctor's patient, defendant's practice is to speak with the doctor first so that he can ask the doctor questions about the patient's condition. Additionally, and specific to this case, Kisor's nurse told defendant that Kisor was concerned that plaintiff might have a conversion disorder. Because a conversion disorder is a psychological condition that neurosurgeons ordinarily do not treat, defendant did not understand why Kisor would ask for his help with that problem and wanted to speak with her before seeing plaintiff.

Kisor called defendant on July 5. After talking with her, defendant saw plaintiff that day. On examining plaintiff, defendant diagnosed plaintiff as suffering from cauda equina syndrome; specifically, defendant concluded that the MRI taken on July 1 showed that plaintiff had a herniated disk, not a disk bulge as the resident had reported. He also concluded from his review of the MRI and his examination of plaintiff that pulp from the center of the herniated disk had escaped and was pressing on a sheath of nerves (the cauda equina) that govern a person's ability to move their legs and to control their bladder and bowel functions. Defendant operated immediately to remove the pressure. The operation was successful. However, the delay between the onset of the pressure and its removal resulted in substantial damage to the nerves governing plaintiff's ability to control her legs and her bladder and bowel functions.

As a result of that damage, plaintiff filed an action against Legacy for the negligence of its employees and also against Leonard.*fn4 Later, plaintiff filed a second amended complaint, adding defendant and alleging that he had negligently failed to "timely diagnose, treat and care for plaintiff's low back condition," "timely examine plaintiff," "timely review plaintiff's MRI," and "timely respond to requests for consultation regarding plaintiff's low back condition." Plaintiff's claim against defendant rested on the premise that, as a result of the telephone call defendant received on July 1, defendant had entered into a physician-patient relationship with plaintiff and, as a result, owed her a duty of due care. Plaintiff acknowledged that, if defendant did not enter into a physician-patient relationship with her until Kisor called him on July 5, then she had no claim against him.

Approximately three weeks before the trial began, plaintiff entered into covenants with Legacy and Leonard not to execute on any judgment against them in return for a payment of $4 million. The agreements provided that, if plaintiff recovered more than $3 million from defendant, she would return $100,000 each to Legacy and Leonard. Although the covenants contemplated that Legacy and Leonard would remain as defendants in plaintiff's action and participate as such at trial, the trial court ruled that, as result of entering into the covenants, no justiciable controversy remained among plaintiff, Legacy, and Leonard. Accordingly, it dismissed both Legacy and Leonard as defendants.

The case went forward solely against defendant. One of the issues at trial was whether defendant had entered into a physician-patient relationship with plaintiff on July 1. Both sides offered expert testimony on that issue, and each side's expert based his opinion on different testimony regarding what had happened that day. To help put the experts' testimony in perspective, we briefly discuss a factual dispute that informs each expert's opinion.

As noted, defendant testified that, on July 1, he had received a telephone call from a male resident working in the emergency room and that the male resident had told him the information quoted earlier in this opinion. An emergency room doctor, Aviva Zigler, had examined plaintiff when she came to the emergency room. Zigler testified that, after examining plaintiff, she had called defendant on July 1 and had spoken to him personally. According to Zigler, she told defendant more (and sometimes different) information about plaintiff than the male resident had told him. Zigler also testified that, although she had not explicitly asked defendant to see plaintiff, she believed that that request was implicit in her calling him in the first place. Defendant, for his part, testified that he had not spoken with Zigler but had received a call from a male resident.

With that background in mind, we turn to the experts' opinions as to whether defendant entered into a physician-patient relationship with plaintiff on July 1 as a result of a call either from the male resident or Zigler. Dr. Hacker, a neurosurgeon, testified as an expert witness on behalf of defendant. When asked whether, "[i]n your judgment and based upon your training and experience, was there a physician-patient relationship between [defendant] and [plaintiff] over the period [from] July 1 until [defendant] saw her on July 5," Hacker replied, "I didn't see a doctor-patient interaction or relationship [between defendant and plaintiff] until * * * July 5."*fn5

Hacker explained that an on-call physician will have an obligation to see and provide medical services to another doctor's patient in two situations. The first situation occurs when the emergency room physician or another doctor asks the on-call physician for a consultation or, more colloquially, to see the patient. As Hacker explained,

"[A] consultation is very simply obtained. Somebody over the phone will say to me, '[doctor], I want you to see my patient' or '[doctor], I want you to see this patient.' And that's in some regard, when I'm on-call for the emergency room or when I'm in a hospital where I have privileges, it's stipulated by the by-laws that I am then obligated to help out. There is no saying, 'Well, I can't do this' or 'I won't do that.' The minute the doctor says, '[doctor], I want you to see this patient,' the answer is, 'Yes, I'll be happy to.' And that's always the answer because that's the rules."

The second situation occurs, according to Hacker, if "the [on-call] physician had enough information on his [or her] own to conclude this is a patient that I should see." According to Hacker, in both situations, an on-call physician will have an obligation to see and treat another doctor's patient.

Regarding the first situation that Hacker identified, defendant testified that the resident with whom he spoke did not ask him to see plaintiff or provide medical services to her. According to defendant, the resident asked for advice only as to whether the patient needed to be seen by a neurosurgeon. Regarding the second situation, there was evidence from which the jury could have found that the information defendant received from the resident would not have put a reasonable neurosurgeon on notice that "this is a patient [whom he] should see." Specifically, the jury could have found that the information that defendant received from the resident omitted three critical facts that would have alerted a reasonable neurosurgeon that plaintiff could have cauda equina syndrome instead of common back pain.*fn6

Plaintiff's expert, Dr. Kendrick, agreed, in part, with defendant's expert. For example, Kendrick testified on direct examination:

"[W]hen a neurosurgeon is on call for * * * a hospital, and receives a call from an emergency room doctor, a certain obligation is developed. And we as neurosurgeons, when we are on call and get such a call, have to respond, first of all. And if we're asked to see a patient, then we're obligated to undertake the care of that patient and a physician-patient relationship is established per se by the ER physician asking us to see someone." Consistently with his testimony on direct examination, Kendrick agreed on cross-examination that the "threshold issue, so to speak, [for establishing a physician-patient relationship] is [whether] the emergency room physician request[s] a neurosurgical consultation with [defendant]." Kendrick also testified, as Hacker had, that, if the emergency room physician described sufficient symptoms of a neurosurgical condition, an on-call neurosurgeon would have an obligation to examine the patient and thus undertake the patient's care.

Kendrick agreed that the emergency room physician had not expressly asked defendant to see plaintiff. However, he opined that, in effect, the "emergency room physician was requesting that [defendant] become involved in [plaintiff's] care." He also concluded that the symptoms that the emergency room physician identified were sufficient to require defendant to see and examine plaintiff. It is worth noting that, when Kendrick referred to the "emergency room physician," he appears to have been referring to Zigler, who testified that she had called defendant personally on July 1 to ask for his assistance in treating plaintiff; that is, Kendrick's opinion relies on and tracks Zigler's testimony regarding the call that she supposedly made to defendant on July 1.

Not only did the two experts reach different conclusions regarding whether the facts gave rise to an obligation on defendant's part as the on-call neurosurgeon to see and provide treatment to plaintiff, but each expert appears to have based his opinion on a different set of facts. Hacker appears to have based his opinion primarily on defendant's testimony, and Kendrick appears to have based his opinion primarily on Zigler's testimony. As noted, the jury found that defendant had not entered into a physician-patient relationship with defendant on July 1, and the trial court entered judgment in defendant's favor based on that finding.*fn7

The Court of Appeals reversed, holding that the only conclusion that the jury could have reached on this record was that a physician-patient relationship existed on July 1. See Mead, 231 Or at 463-64. The Court of Appeals recognized that, without a physician-patient relationship, defendant owed no duty to plaintiff. Id. at 457. It also recognized that the formation of that relationship is consensual and that the parties' consent to enter a physician-patient relationship may be either express or implied. Id. at 458. In this case, the Court of Appeals found that defendant impliedly consented to enter into a physician-patient relationship from the combination of two facts. See id. at 463-64. It concluded that, in advising the resident to admit plaintiff for pain management, defendant was diagnosing plaintiff. Id. at 463. It also observed that, in doing so, defendant was acting in his capacity as an on-call physician. It followed from those two facts, the Court of Appeals reasoned, that defendant's "advice * * * was not merely casual or informal advice to a colleague [but instead was] a diagnosis directed to a specific patient." Id. at 464. The Court of Appeals held that, because defendant formally had undertaken to diagnose plaintiff, he had entered into a physician-patient relationship with her. Id.

On review, plaintiff commends the Court of Appeals' reasoning to us. Alternatively, she contends that the trial court erred in instructing the jury on when a physician-patient relationship will arise and also in permitting defendant to impeach her witnesses based on the covenants that either they or their employer entered. We begin with the question that the Court of Appeals decided -- whether there was any evidence in the record to support the jury's verdict. Regarding that question, we will "uphold the jury's verdict, unless our review of the record reveals that there is no evidence from which the jury could have found the facts" necessary to sustain its verdict. See Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or 304, 310, 39 P3d 846 (2002) (stating that standard).

We begin by setting out the governing legal principles. In Oregon, as in most states, a physician-patient relationship is a necessary predicate to stating a medical malpractice claim. See Dowell v. Mossberg, 226 Or 173, 181-83, 355 P2d 624, rev'd on reh'g on other grounds, 359 P2d 541 (1961); David W. Louisell & Harold Williams, 1 Medical Malpractice § 8.03[1] at 8-17 (2009) (summarizing decisions from other states). As this court recognized in Dowell, without a physician-patient relationship, "'there c[an] be no duty to the plaintiff, and hence no liability.'" Dowell, 226 Or at 181-82 (quoting Currey v. Butcher, 37 Or 380, 385, 61 P 631 (1900)).*fn8

A physician-patient relationship may be either express or implied. See Dowell, 226 Or at 182. In this case, plaintiff does not contend that defendant expressly agreed to provide medical services to her. Rather, she contends that an implied physician-patient relationship arose when defendant offered an opinion regarding her condition to the emergency room resident on July 1.

When a patient goes to a doctor's office and the doctor examines the patient, ordinarily no one disputes that an implied agreement to provide medical care has been formed and that consequently an implied physician-patient relationship arises. Cf. Lyons v. Grether, 239 SE2d 103, 105 (Va 1977) (holding that an appointment for a specific illness permitted a reasonable inference that the defendant had agreed to provide medical services for that illness and thus provided a basis for inferring a physician-patient relationship). That is, we infer from the parties' actions, considered in light of the customary practice in the medical community, that the physician consented to provide and the patient consented ...

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