Anderson v. Houser

• Decision Date: 06 October 1999
• Docket Number: No. A99A1112.,A99A1112.
• Citation: 240 Ga. App. 613,523 S.E.2d 342
• Parties: ANDERSON v. HOUSER.
• Court: Georgia Court of Appeals

523 S.E.2d 342

240 Ga. App. 613

ANDERSON v. HOUSER.

No. A99A1112.

Court of Appeals of Georgia.

October 6, 1999.

Reconsideration Denied November 2, 1999.

Certiorari Denied March 3, 2000.

Williams & Henry, Philip C. Henry, Robert L. Callahan III, Edward C. Henderson, Jr., Atlanta, for appellant.

Sistrunk & Associates, Hezekiah Sistrunk, Jr., Michael S. Bailey, Atlanta, for appellee.

RUFFIN, Judge.

Mariam Anderson was admitted to the Southwest Hospital emergency room on February 29, 1996, for a suspected drug overdose. On March 1, 1996, she was discharged and transferred to Georgia Regional Hospital. She later sued Southwest Hospital and several physicians, including Dr. John W. Houser, for medical malpractice, alleging that they negligently failed to diagnose an esophageal perforation. Although not specified in her complaint, she also contended that the hospital transferred her to Georgia Regional Hospital when she was not stable. Dr. Houser never met or treated Anderson and was out of town during her hospital stay. However, Anderson contended that Dr. Houser owed her a duty of care because he was the scheduled on-call physician when she was admitted to the emergency room. The trial court granted summary judgment to Houser, holding that he owed Anderson no duty because there was no physician-patient privity. For reasons discussed below, we affirm.

To prevail on a motion for summary judgment,

the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions[,] and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.¹

Dr. Houser testified that he was an attending physician on the staff of Southwest Hospital. In February 1996, Dr. Houser was listed as an on-call physician for family practice at the hospital. The hospital bylaws required staff members to provide on-call services for patients who came to the emergency room without a physician. The hospital would distribute a schedule listing the days each doctor was assigned on-call duty. On any given day, one doctor would be the designated on-call doctor for family practice patients. Dr. Houser testified that, if a doctor was unable to be on call when scheduled, it was his responsibility to find someone to take his place. However, Dr. Houser also testified that "the hospital bylaws provides for a redundant system. In other words, if I'm not available, there's someone else; and if that person is not available, there's somebody else. But on the schedule, there's only one name." Another doctor, Dr. Frank Cook, testified that

there's a chain of command that is supposed to be followed [when an on-call doctor is unavailable]. There are rules and regs governing according to the medical staff bylaws, that there are certain steps you go through if you can't find the attending physician.... They go to the person's partner or associate, number one. If there is not or if that's not available, they go to the chief of the service. If that person is not available, they go to the chief of staff. If that person is not available, they go to the hospital administrator.

Dr. David Blake testified that, if a resident is unable to contact the on-call family practice doctor, there is a family practice attending physician on call at all times to whom he could turn for assistance.

Dr. Houser admitted that he was the scheduled on-call family practice physician from 8:00 a.m. on February 29, 1996, until 8:00 a.m. on March 1, 1996, during which time Anderson was admitted to the emergency room. He also admitted that he was out of town during this period, but claimed that he arranged for Dr. Cook to cover for him. Dr. Cook denied that he agreed to cover for Dr. Houser on February 29, when Anderson was admitted, claiming that his coverage period was not to begin until March 1.

Dr. Cook testified that he did not receive any medical information or give any advice regarding Anderson during her hospital stay. However, Dr. Shaun Brownlee, a resident who treated Anderson at the hospital, testified that he consulted with Dr. Cook regarding Anderson's treatment after learning that Dr. Houser was out of town. Dr. Brownlee testified that, although Dr. Cook said he was not supposed to start covering for Dr. Houser until the weekend, he nevertheless agreed to let Dr. Brownlee present Anderson's case to him. According to Dr. Brownlee, Dr. Cook approved his suggested orders and gave him additional orders for treatment. Dr. Brownlee testified that there was no doubt in his mind that Dr. Cook was available throughout the remainder of his shift for consultation regarding Anderson. Dr. Cook, however, testified that he told Dr. Brownlee he was not covering for Dr. Houser and that he refused to provide any input as to Anderson's diagnosis or treatment. Nurse Sarah Hardy testified that Dr. Cook personally authorized Anderson's transfer to Georgia Regional Hospital, although Dr. Cook denied doing so. The trial court found that the evidence was conflicting as to whether Dr. Houser had properly arranged for a substitute on-call physician and assumed for summary judgment purposes that Dr. Houser did not make proper arrangements.

1. The sole question on appeal is whether Dr. Houser owed Anderson a duty of care, even though he never met Anderson, was never consulted about her condition, and was not aware of her existence. In considering this issue, we must start from the

well-settled principle of Georgia law that there can be no liability for malpractice in the absence of [a] physician-patient relationship.... [D]octor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. Bradley Center v. Wessner, 250 Ga. 199, 296 S.E.2d 693 (1982). The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient.²

The parties do not cite, and we are not aware of, any Georgia cases dealing with the precise issue in this case. However, cases in other jurisdictions have taken differing approaches to determining when an on-call doctor may be liable for failing to provide services to a patient he has never met. In Hiser v. Randolph,³ after a patient with acute diabetes arrived at the emergency room in a semi-comatose condition, the emergency room nurse contacted the on-call physician, Dr. Randolph. Dr. Randolph refused to attend or treat the patient and advised the nurse to call Dr. Arnold, the patient's regular physician, who had treated her in the emergency room the day before. The nurse subsequently advised Dr. Randolph that Dr. Arnold would not come to the hospital, and Dr. Randolph again refused to attend the patient. The patient died the next day, and her husband later sued Dr. Randolph for malpractice.

In reversing a grant of summary judgment in favor of Dr. Randolph, the Arizona Court of Appeals held that he had a duty to treat the emergency room patient. The court noted that (1) state law required a hospital providing emergency room services to provide those services to everyone in need of them; (2) the hospital's bylaws stated a purpose that "all patients ... treated in the Emergency Room receive the best possible care"; (3) the hospital's rules and regulations stated that "[i]n case of emergency [a] provisional diagnosis shall be stated as soon after admission as possible"; (4) all members of the medical staff were required to sign the bylaws and rules and regulations; and (5) Dr. Randolph was paid $100 per day to be the doctor on call in charge of the emergency room.⁴ Although the court recognized the general rule that a doctor can refuse to treat a patient even in emergency situations,⁵ it held that

[i]n our opinion, Dr. Randolph, by assenting to these bylaws, and rules and regulations, and accepting payment from the hospital to act as the emergency room doctor "on call," personally became bound "to insure that all patients ... treated in the Emergency Room receive the best possible care," and agreed to insure "in the case of emergency the provisional diagnosis shall be started as soon after admission as possible."... [T]he obviously intended effect of the bylaws and rules and regulations was to obligate the emergency room doctor "on call" to provide emergency treatment to the best of the doctor's ability to any emergency patient of the hospital. Under these circumstances, the lack of a consensual physician-patient relationship before a duty to treat can arise has been waived by the signatory doctors.⁶

The court in Hiser did not address whether the patient was an intended third-party beneficiary of the contract between the hospital and Dr. Randolph so as to create a doctor-patient relationship. Nor did it hold that there was a consensual doctor-patient relationship between the patient and Dr. Randolph. Rather, it held that by agreeing to the hospital's bylaws and rules and regulations, Dr. Randolph assumed a duty to treat emergency room patients notwithstanding the lack of a consensual doctor-patient relationship.⁷

The Ohio Court of Appeals took a different approach to this issue in McKinney v. Schlatter.⁸ In that case, the patient's emergency room doctor telephoned an on-call cardiologist and described the patient's x-ray, electrocardiogram, and other test results. The cardiologist said that he did not believe the patient's problem was cardiac in nature and...