Mead v. Legacy Health Sys.

Decision Date26 July 2012
Docket NumberSC S058268).,(CC 0402–01947,CA A130969
Citation352 Or. 267,283 P.3d 904
PartiesCynthia Lynn MEAD, Respondent on Review, v. LEGACY HEALTH SYSTEM, an Oregon corporation; Legacy Good Samaritan Hospital and Medical Center, an Oregon corporation; and Hubert Leonard, M.D., Defendants, and David Adler, M.D., Petitioner on Review.
CourtOregon Supreme Court


On review from the Court of Appeals.*

Michael T. Stone and Larry A. Brisbee, Brisbee & Stockton LLC, Hillsboro, argued the cause for petitioner on review. Michael T. Stone filed the briefs.

Maureen Leonard, Portland, argued the cause and filed the briefs for respondent on review.

Andrew M. Schlesinger, Lake Oswego, filed the brief for amicus curiae Oregon Trial Lawyers Association.


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 P.3d 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.1

The relevant facts can be summarized briefly.2 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.3 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.” 4

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, ...

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