Mead v. Legacy Health System

Decision Date28 October 2009
Docket Number040201947.,A130969.
PartiesCynthia Lynn MEAD, Plaintiff-Appellant, 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., Defendant-Respondent.
CourtOregon Court of Appeals

Maureen Leonard argued the cause for appellant. With her on the briefs were Deborah L. Martin and Luvera, Barnett, Brindley, Beninger & Cunningham.

Michael T. Stone, Hillsboro, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.


In this medical malpractice case, plaintiff appeals a judgment for defendant, Dr. Adler, an on-call neurosurgeon who gave advice over the telephone to an emergency room physician or resident physician concerning plaintiff's care. The case turns on whether the circumstances of that communication gave rise to a physician-patient relationship between defendant and plaintiff. The trial court denied plaintiff's motion for a directed verdict on the issue of the existence of a physician-patient relationship and submitted the question to the jury, with instructions as to what constitutes such a relationship. On appeal, plaintiff assigns error to, among other rulings, the denial of her motion for a directed verdict, to the court's instruction to the jury, and to the court's failure to give her own requested instruction. She also assigns error to the trial court's evidentiary ruling with respect to Mary Carter agreements1 that plaintiff entered into with defendants Legacy Health System, Legacy Good Samaritan Hospital, and Dr. Leonard, all of whom have been dismissed from the case.2 Because we conclude that defendant's conduct gave rise to a physician-patient relationship as a matter of law, we conclude that the trial court erred in submitting the question of the existence of a physician-patient relationship to the jury and reverse the judgment for defendant and remand.

The relevant evidence is as follows: On July 1, 2002, defendant was the neurosurgeon on call for Legacy Good Samaritan Hospital. Defendant's responsibility to be on call was a condition of his having privileges to treat patients at Legacy Good Samaritan Hospital. As the on-call neurosurgeon, defendant had an obligation to be available for patients who presented neurosurgical concerns on an emergency basis.

Plaintiff came to the emergency room on the morning of July 1, 2002, unable to walk due to severe low back pain and weakness in her legs. Dr. Aviva Zigman, the emergency room physician, examined plaintiff. A second-year resident was also present in the emergency room and examined plaintiff. Based on her findings, Zigman suspected that plaintiff either had a herniated disk or was developing cauda equina syndrome, a serious neurological condition caused by compression of the nerves at the base of the spinal cord that requires immediate surgery. Zigman ordered an MRI, and that MRI showed a herniated disc at L3-4. That result caused Zigman to worry more about the possibility of cauda equina syndrome, and she testified that for that reason she decided to contact defendant, who was the neurosurgeon on call that day. Zigman and defendant relate different versions of the telephone conversation.

Zigman testified that she personally spoke to defendant and concisely presented plaintiff's case, describing plaintiff's symptoms and the MRI report, including specifically mentioning the herniated disc. Zigman testified that defendant told her that plaintiff could go home with pain medication and bed rest. Zigman testified that she was surprised by that advice and told defendant that plaintiff could not be sent home because she could not walk. Zigman testified that defendant then told her to admit plaintiff for one day for observation and pain management, under her primary physician's name. Zigman noted her consultation with defendant in the hospital chart and called plaintiff's primary physician, Dr. Kisor, to ask that plaintiff be admitted for observation and pain management.

Defendant presented a different version of the conversation. He testified that he did not speak to Zigman. He did, however, agree that he spoke about plaintiff's condition to a male physician in the emergency room who may have been a resident. Defendant testified that the resident told him that he had a patient "with bad back pain, who was neurologically intact, who had an MRI with a disc bulge, and who had normal rectal tone." He testified that it was his perception that the conversation with the resident was "a sort of a phone call for advice," to determine whether the patient needed to be seen by a neurosurgeon. He testified that, based on the information provided to him by the resident at that time, he believed that plaintiff's primary concern was pain and that he did not believe that plaintiff's condition demonstrated the existence of a neurosurgical issue.

Defendant testified that, after a brief conversation, he told the resident physician that plaintiff should be admitted by her primary physician for observation and pain management; he acknowledged that the implication of his advice was that plaintiff did not need neurosurgery at that time.3 Defendant testified that he did not expect that the resident physician would rely on his advice, and that he did not consider that plaintiff would be admitted to his service. Defendant testified that he was not asked on July 1 to examine plaintiff, that he never told the physician that he would examine plaintiff or become involved in plaintiff's treatment, and that he never assumed responsibility for and did not expect to play a role in her care. He did not bill the hospital for his telephone conversation on July 1. Defendant stated that he anticipated that if plaintiff's condition deteriorated neurologically, he would be called.

Kisor, plaintiff's primary physician, visited plaintiff in the hospital that evening and requested a neurosurgical and psychiatric consult. Kisor testified that, in her conversation with Zigman, Zigman told her that defendant did not think that plaintiff required surgery. Kisor and Zigman both believed that defendant would come to the hospital to evaluate plaintiff after her admission. Kisor also consulted with Leonard, a neurologist4 who had treated plaintiff over the years for headaches. Plaintiff's condition deteriorated; she continued to lose strength and sensation in her legs. Both Kisor and Leonard testified that they sought a consult from defendant but that he did not return their calls. Defendant testified that a nurse made a consult request on Kisor's behalf on either July 3 or 4, but that defendant simply told the nurse to have Kisor call him.

On July 5, defendant examined plaintiff and looked at her MRI results and determined that she had "a very large herniated disk with cauda equina syndrome." He performed emergency surgery to relieve compression of the nerves. Plaintiff suffers from permanent impairment. At the time of trial, she was unable to walk without assistance and was incontinent of bowel and bladder. She required 24-hour assistance and could not care for her three children alone.

Plaintiff filed this medical malpractice claim. The case went to trial. Defendant asserted that he had no liability to plaintiff because the two had not entered into a physician-patient relationship at the time of the alleged negligent conduct. At the close of the evidence, plaintiff sought a partial directed verdict that she and defendant had a physician-patient relationship.5 The trial court denied the motion and submitted the question of the existence of the relationship to the jury. In a special verdict, the jury found that there was no physician-patient relationship in existence on July 1. On appeal, plaintiff assigns error to the trial court's denial of her motion for directed verdict, contending that defendant's communication on July 1, which plaintiff asserts constituted diagnosis and treatment, gave rise to a physician-patient relationship as a matter of law.

In reviewing the trial court's denial of plaintiff's motion, we consider the evidence, including any inferences, in the light most favorable to defendant as the party who obtained the favorable verdict; the verdict cannot be set aside "unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary" to support it. Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984).

Plaintiff's claim is for medical malpractice. In Zehr v. Haugen, 318 Or. 647, 653-54, 871 P.2d 1006 (1994), the Supreme Court described the elements of a claim for medical malpractice: (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) a causal link between the breach and the harm. Generally, a claim for medical malpractice will lie only for negligence committed in the context of a physician-patient relationship. Sullenger v. Setco Northwest, Inc., 74 Or.App. 345, 348, 702 P.2d 1139 (1985). Thus, at the outset, plaintiff is required to establish that she and defendant had a physician-patient relationship.

Although no Oregon case deals specifically with facts analogous to those here, our case law offers guidance in determining whether a special relationship exists. As we said in Shin v. Sunriver Preparatory School, Inc., 199 Or.App. 352, 366, 111 P.3d 762 (2005), the issue is fact dependent. See also Strader v. Grange Mutual Ins. Co., 179 Or.App. 329, 334, 39 P.3d 903, rev. den., 334 Or. 190, 47 P.3d 485 (2002) (explaining that the cases undertake a "functional as opposed to a formal analysis" in determining whether a special relationship exists, based not on the name of the relationship but on the roles that the parties assume...

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