Hill by Burston v. Kokosky

• Decision Date: 17 December 1990
• Docket Number: Docket No. 118393
• Parties: Thomas HILL, II, by his Next Friend, Kelly BURSTON, and Thomas Hill and Kelly Burston, Individually, Plaintiffs-Appellants, and Department of Social Services, Intervening Plaintiff, v. Mary KOKOSKY, M.D., and Moustafa Hassan, M.D., Defendants-Appellees, and Susan Petcoff, D.O., William Hole, D.O., James Hole, D.O., R. Zurack, D.O., and Riverside Osteopathic Hospital, Defendants. 186 Mich.App. 300, 463 N.W.2d 265
• Court: Court of Appeal of Michigan — District of US

Page 265

463 N.W.2d 265

Thomas HILL, II, by his Next Friend, Kelly BURSTON, and

Thomas Hill and Kelly Burston, Individually, Plaintiffs-Appellants, and Department of Social Services, Intervening Plaintiff, v. Mary KOKOSKY, M.D., and Moustafa Hassan, M.D.,

Defendants-Appellees,

and

Susan Petcoff, D.O., William Hole, D.O., James Hole, D.O.,

R. Zurack, D.O., and Riverside Osteopathic

Hospital, Defendants.

Docket No. 118393.

186 Mich.App. 300, 463 N.W.2d 265

Court of Appeals of Michigan.

Submitted June 19, 1990.

Decided Nov. 19, 1990.

Released for Publication Dec. 17, 1990.

[186 MICHAPP 301] Bishop & Shelton, P.C. by Ronald W. Carson, Ann Arbor, for plaintiffs-appellants.

Feikens, Foster, Vander Male & DeNardis, P.C. by L. Neal Kennedy and Susan L. Brown, Detroit, for defendants-appellees.

Kerr, Russell & Weber by Richard D. Weber and Joanne Geha Swanson, Detroit, for Michigan State Medical Society, amicus curiae.

Before McDONALD, P.J., and MacKENZIE and WEAVER, JJ.

MacKENZIE, Judge.

This is a medical malpractice action. Plaintiffs appeal as of right from an order granting summary disposition in favor of defendant doctors Mary Kokosky and Moustafa Hassan pursuant to MCR 2.116(C)(10). The Michigan State Medical Society has filed an amicus brief aligned with defendants' position. We affirm.

The basic issue in this case is whether a doctor who is contacted by a patient's treating physician [186 MICHAPP 302] to discuss treatment alternatives owes a duty of care to the patient whose case is discussed.

On January 3, 1986, Kelly Burston, approximately twenty-two weeks pregnant, was admitted to Riverside Osteopathic Hospital with an incompetent cervix. During Burston's hospitalization at Riverside, her obstetrician, Dr. William Hole, contacted defendants to ask their opinions about the case. Defendants, who are physicians at Oakwood Hospital, spoke with Dr. Hole over the telephone and gave him their opinions based on the case history Hole related to them. Dr. Hole did not refer Burston to either defendant. Neither defendant contacted Burston, examined her, or reviewed her chart.

Burston gave birth to Thomas Hill, II, on January 16, 1986. Thomas suffers from cerebral palsy, mental retardation, developmental delay, and severe respiratory problems. Plaintiffs allege that Thomas' injuries were caused in part by defendants' substandard advice to Dr. Hole during their telephone conversations and that defendants are liable to plaintiffs for this alleged malpractice.

The existence or nonexistence of a legal duty is a question of law for the court to decide. See Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977). Duty is essentially a question whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. Moning, supra, at pp. 438-439, 254 N.W.2d 759. Without a legal duty there is no actionable negligence. Duvall v. Goldin, 139 Mich.App. 342, 347, 362 N.W.2d 275 (1984), lv. den. 422 Mich. 976 (1985).

In physician malpractice cases, the duty owed by the physician arises from the physician-patient relationship. Rogers v. Horvath, 65 Mich.App. 644, 647, 237 N.W.2d 595 (1975), lv. den. 396 Mich. 845[186 MICHAPP 303] (1976). Accordingly, a professional physician-patient relationship is a legal prerequisite to basing a cause of action in professional malpractice against a physician. See Rogers, supra, 65 Mich.App. at p. 646, 237 N.W.2d 595. A physician-patient relationship exists where a doctor renders professional services to a person who has contracted for such services. Rogers, supra, at pp. 646-647, 237 N.W.2d 595. See also anno: What constitutes physician-patient relationship for malpractice purposes, 17 ALR4th 132.

Whether a physician-patient relationship arises from a treating physician's solicitation of a colleague's informal opinion on patient treatment is an issue of first impression in this state. Other jurisdictions have considered the question, however. In the absence of a referral, a formal consultation, or some other contractual relationship, these jurisdictions have concluded that no physician-patient relationship arises in this context. In Ingber v Kandler, 128 A.D.2d 591-592, 513 N.Y.S.2d 11 (1987), the court stated:

The record before us reveals that, at most, the respondent gave an informal opinion to a fellow physician regarding a case with which the respondent had no connection whatsoever. Indeed, there has been no showing that the respondent had any contact with the patient, saw any records relating to the case, or even knew the patient's name. Upon these facts, it cannot possibly be found that a relationship existed between the respondent and the plaintiff's decedent that gave rise to a duty on the part of the respondent toward the deceased infant.

Similarly, in Oliver v. Brock, 342 So.2d 1, 4 (Ala.1976), the court stated:

We fail to see any evidence from which it could [186 MICHAPP 304] be concluded that [defendant physician] has consented to treat the child, or any from which it could be inferred that he consented to act in a consulting capacity....

[The treating physician] denies that he ever asked [the defendant] to take part in the treatment of the child and denies that [the defendant] did so. He admits making only a casual reference to the condition of this patient in the abstract, without mentioning her name, during the course of a conversation with [the defendant] about another patient, and that based upon his description of the injury and the treatment, [the defendant] responded that the treatment seemed to be correct. Whether or not a physician-patient relationship exists depends upon the facts in each case, but some facts must be supplied to support a conclusion that the relationship has been created. In this case, there are no facts which can support the conclusion that the relationship ever...