Diggs v. Arizona Cardiologists, Ltd.

• Citation: 8 P.3d 386,198 Ariz. 198
• Decision Date: 08 August 2000
• Docket Number: No. 1 CA-CV 99-0508.,1 CA-CV 99-0508.
• Parties: Vainus DIGGS, Sr., the surviving husband of Cynthia Collette Diggs, deceased, for and on behalf of himself and Vivian Tinsley, Vanessa E. Diggs, and Vansamuel Lamar Diggs the surviving children of the deceased; Samuel Hamilton And Sammietta Hamilton, surviving parents of the deceased, Plaintiffs-Appellants, v. ARIZONA CARDIOLOGISTS, LTD., an Arizona corporation; Arizona Cardiology Group, P.C., an Arizona corporation; Ruben S. Valdez, M.D., Defendants-Appellees.
• Court: Court of Appeals of Arizona

8 P.3d 386

198 Ariz. 198

Vainus DIGGS, Sr., the surviving husband of Cynthia Collette Diggs, deceased, for and on behalf of himself and Vivian Tinsley, Vanessa E. Diggs, and Vansamuel Lamar Diggs the surviving children of the deceased; Samuel Hamilton And Sammietta Hamilton, surviving parents of the deceased, Plaintiffs-Appellants, v. ARIZONA CARDIOLOGISTS, LTD., an Arizona corporation; Arizona Cardiology Group, P.C., an Arizona corporation; Ruben S. Valdez, M.D., Defendants-Appellees.

No. -0508.

Court of Appeals of Arizona, Division 1, Department C.

August 8, 2000.

Snyder and Wenner, P.C. by David A. Wenner, Howard M. Snyder and Copple, Chamberlain, Boehm & Murphy, P.C. by Steven D. Copple, Scott E. Boehm, Phoenix and Law Offices of Richard Grand by Richard D. Grand, Tucson and Law Office of John D. Shaw by John D. Shaw, Phoenix, Attorneys for Plaintiffs-Appellants.

White and Cummings, P.C. by Frederick M. Cummings, Robert W. Blesch, Phoenix, Attorneys for Defendants-Appellees.

OPINION

TOCI, Judge.

¶ 1 After conferring with cardiologist, Dr. Rubin S. Valdez, the St. Luke's Medical Center emergency room physician, Dr. Paul Johnson, treated Cynthia Diggs' severe chest pain and released her. Three hours later, she died of a heart attack. Her husband, Vainus Diggs, Sr., her children, and her parents filed a medical malpractice suit against, among others, Dr. Valdez, Arizona Cardiologists, Ltd., and Arizona Cardiology Group, P.C. ("the Valdez defendants"). The trial court granted summary judgment to the Valdez defendants reasoning that, without an express or implied physician-patient relationship, Dr. Valdez owed no duty of care to Mrs. Diggs.

¶ 2 The issue is whether Dr. Valdez's brief discussion with Dr. Johnson, during which Dr. Valdez reviewed Mrs. Diggs' clinical records and rendered advice on the diagnosis and treatment of her medical condition, is sufficient to create a duty from Dr. Valdez to Mrs. Diggs. We hold that when Dr. Valdez undertook to give advice to Dr. Johnson regarding Mrs. Diggs' care and treatment, knowing that Dr. Johnson would rely on this advice, Dr. Valdez owed a duty of reasonable care to Mrs. Diggs. We also hold that an express physician-patient relationship is not a requisite for finding a duty of reasonable care under these circumstances. We therefore do not determine whether an express physician-patient relationship existed between Dr. Valdez and Mrs. Diggs. Because summary judgment was inappropriate, we reverse and remand.

BACKGROUND

¶ 3 On the morning of July 17, 1996, Mrs. Diggs was stricken with severe chest pain. Paramedics took her to the St. Luke's Medical Center Emergency Department where she was seen by Dr. Johnson. Dr. Johnson took her medical history, examined her, and ordered an electrocardiogram ("EKG") and an echocardiogram. Although the EKG machine indicated that Mrs. Diggs was suffering from myocardial infarction, Dr. Johnson thought that her physical symptoms were indicative of pericarditis, inflammation of the sac around the heart.

¶ 4 Dr. Johnson had treated pericarditis in the past but before he could be certain that Mrs. Diggs was suffering from pericarditis he had to rule out myocardial infarction as a possible diagnosis. He was, however, untrained in the interpretation of echocardiograms and thus was unable to use the results of this test to make a differential diagnosis. Furthermore, because the computer interpretation generated by the EKG machine conflicted with Dr. Johnson's interpretation of the EKG, he needed confirmation from a cardiologist that the EKG demonstrated pericarditis, rather than myocardial infarction.

¶ 5 Dr. Johnson saw Dr. Valdez visiting another patient in the Emergency Department. Although Dr. Valdez was not the on-call cardiologist at that time, Dr. Johnson and Dr. Valdez briefly discussed Mrs. Diggs' case. Dr. Johnson presented Dr. Valdez with Mrs. Diggs' clinical history and the results of his physical examination. Dr. Valdez also reviewed the EKG results.

¶ 6 Dr. Valdez agreed with Dr. Johnson that Mrs. Diggs should be discharged. They concluded that Mrs. Diggs' pericarditis should be treated with Indocin, a nonsteroidal anti-inflammatory medication, and that she follow up with her family practice physician immediately. Dr. Valdez also offered to see Mrs. Diggs in ten days for follow-up care.

¶ 7 Dr. Johnson discharged Mrs. Diggs around 1 p.m. with the above instructions. She died about three hours later of cardiopulmonary arrest. After her death, another cardiologist at St. Luke's reviewed Mrs. Diggs' EKG and echocardiogram pursuant to the hospital's practice to have a cardiologist review all such tests for an "official" interpretation. The tests confirmed that Mrs. Diggs was suffering from an acute myocardial infarction while she was in the emergency department earlier in the day.

¶ 8 Plaintiffs filed this medical malpractice action against Dr. Johnson, the three corporate entities doing business as St. Luke's, and the Valdez defendants, requesting damages for wrongful death. The Valdez defendants moved for summary judgment, arguing that Dr. Valdez only informally consulted with Dr. Johnson regarding Mrs. Diggs and owed her no duty of care. Plaintiffs filed a cross-motion for summary judgment on the issue, arguing that Dr. Valdez owed a duty of care to Mrs. Diggs because he: (a) formed a physician-patient relationship with Mrs. Diggs; (b) negligently performed voluntary undertakings according to Restatement (Second) of Torts (1965) ("Restatement") sections 323, 324, and 324A; and (c) was contractually obligated to treat Mrs. Diggs under St. Luke's Bylaws.

¶ 9 The trial court found no contractual physician-patient relationship between Dr. Valdez and Mrs. Diggs and relying on Hafner v. Beck, 185 Ariz. 389, 916 P.2d 1105 (1995), decided as a matter of law that Dr. Valdez did not owe a duty to Mrs. Diggs. The court concluded that Dr. Valdez's involvement was limited to an informal consultation that did not give rise to a duty of due care. It further rejected plaintiffs' argument based on the Bylaws because they presumed a physician-patient relationship that did not exist. The court did not address plaintiffs' Restatement arguments.

¶ 10 After the court granted summary judgment for the Valdez defendants, plaintiffs settled their claims against the remaining defendants. The court entered an order dismissing the claims against Dr. Johnson and the St. Luke's entities and entered judgment in favor of the Valdez defendants. Plaintiffs timely filed this appeal of the summary judgment in favor of the Valdez defendants.

DISCUSSION

¶ 11 Ordinarily, the existence of a duty is a question of law. See Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). In some circumstances, however, the existence of a duty may depend on preliminary questions that must be determined by a fact finder. See, e.g., Siddons v. Business Properties Dev. Co., 191 Ariz. 158, 159, ¶ 4, 953 P.2d 902, 903 (1998) (whether landlord had a duty to keep premises safe depended on factual question of whether premises were within landlord's control). When such preliminary facts are in dispute, summary judgment on the issue of duty is inappropriate. See id. at ¶ 7, 953 P.2d 902. Here, however, the record contains sufficient undisputed facts for us to determine that Dr. Valdez's involvement in Mrs. Diggs' treatment gave rise to a duty of reasonable care.

¶ 12 We observe that courts have reached differing conclusions when considering whether a consulting physician owes a duty of care to the patient. The cases range from a doctor simply answering a colleague's casual telephone inquiry about a course of treatment to an on-call doctor examining and essentially directing the course of the patient's treatment. See Oja v. Kin, 229 Mich. App. 184, 581 N.W.2d 739, 741-43 (1998) (discussing spectrum of situations); see also James L. Rigelhaupt, Jr., Annotation, What Constitutes Physician-Patient Relationship for Malpractice Purposes, 17 A.L.R.4th 132 (1982). Generally, where a physician has been informally consulted, the courts deny recovery for negligence, theorizing that a duty cannot exist absent a contractual relationship. See Rigelhaupt, 17 A.L.R.4th at 135-36; Oja, 581 N.W.2d at 743.

¶ 13 But the employment contract rationale is unsatisfactory when, for example, diagnostic medical services are provided by a pathologist. No express physician-patient relationship exists yet many courts have concluded that the physician who provides consulting services to a treating doctor for the benefit of an unknown patient has an "implied" contract of employment that gives rise to a duty. See, e.g., Dougherty v. Gifford, 826 S.W.2d 668, 674-75 (Tex.App.1992)(implying relationship between patient and pathologists because diagnostic services were furnished on patient's behalf); Walters v. Rinker, 520 N.E.2d 468, 471-72 (Ind.App.1988)(implying relationship between patient and pathologist because patient's treating physician requested pathologist's services on behalf of patient).

¶ 14 In the instant case, we decline to apply this rationale. Although an express contractual physician-patient relationship clearly gives rise to a duty to the patient, the absence of such a relationship does not necessarily exclude a duty to the patient. Nor, in our view, is it necessary for the court to "imply" a contractual relationship between physician and patient in order to find a duty of reasonable care. Rather, we follow our supreme court's traditional approach to duty and determine whether a sufficient relationship existed between Dr. Valdez and Mrs. Diggs such that, as a matter of policy, Dr. Valdez owed her a duty of reasonable care. See Markowitz, 146 Ariz. at 356, 706 P.2d at 368.

¶ 15 Because the trial court relied on Hafner for the proposition that a contractual physician-patient relationship must exist to establish a duty in a medical malpractice action, we first...