Lownsbury v. VanBuren

STATE OF OHIO, COUNTY OF SUMMIT

IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT

C.A. NO. 19365

REBECCA LOWNSBURY, et al.

Appellants

v.

GEORGE VANBUREN, M.D., et al., Appellees

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE NO. CV 96 01 0275

 

DECISION AND JOURNAL ENTRY

 

 

Dated: August 2, 2000

This cause was heard upon the record in the
trial court. Each error assigned has been reviewed and the following disposition
is made:

______________________________________________________________________________________

 

Per Curiam.

Appellants-plaintiffs appeal from a judgment
of the Summit County Court of Common Pleas that granted summary judgment in
favor of appellee-defendant Dr. Thomas Stover, M.D. This Court affirms.

I.

On January 6, 1995, Cathy Lownsbury ("Lownsbury")
went to Akron City Hospital?s ("ACH") maternal-fetal medicine center
for a prenatal visit. Lownsbury was seen by a third year resident-physician. The
resident-physician ordered an ultrasound and Non-Stress Test be completed. These
tests were completed and evaluated by a perinatologist (specialist in
maternal-fetal medicine), Dr. George VanBuren. Based on the results of the
tests, Lownsbury was sent to labor and delivery. A dispute exists as to whether
the doctor who sent Lownsbury to labor and delivery ordered that labor be
induced, or that a Contraction Stress Test ("CST") be performed.
Lownsbury was seen on an outpatient basis in labor and delivery. A
resident-physician performed a physical examination and a CST. The
resident-physician consulted with a more senior resident-physician to interpret
the CST. Based on the test results interpreted by the senior resident-physician,
Lownsbury was sent home. She was instructed to follow up and to have another CST
within one week. The results of the CST were reviewed the next morning, January
7, 1995, by the perinatologist. The reviewing doctor agreed with the
interpretation by the senior resident.

Dr. Stover was never notified and was not
aware that Lownsbury was at the hospital. He was never consulted regarding the
tests or interpretation of the test results. He never examined, treated,
evaluated or consulted with anyone about Lownsbury. He had no contact with the
patient.

On January 10, 1995, Lownsbury gave birth to a
severely brain damaged child, Rebecca. Appellants? medical experts opine that
if labor had been induced earlier, the child would not have suffered permanent
neurological injury.

Upon learning that Dr. Stover was the
supervisory physician of ACH?s labor and delivery department on January 6,
1995, the day Lownsbury had been seen for testing, appellants filed suit against
Dr. Stover charging that he was responsible for Rebecca?s injuries. Appellants?
complaint alleged that Dr. Stover is liable for Rebecca?s injuries because he
failed to supervise the residents on duty and ensure that the requisite prenatal
care was provided to Lownsbury. After extensive discovery, Dr. Stover moved for
summary judgment. Because he did not treat, evaluate, consult, or even know of
Lownsbury?s hospital visit, Dr. Stover argued that he did not owe a duty to
Lownsbury or Rebecca because a physician-patient relationship had never been
established. The trial court granted summary judgment in favor of Dr. Stover.

Appellants appeal, asserting one assignment of
error.

II.

ASSIGNMENT OF ERROR

The Trial Court Erred In Granting Defendant
Thomas Stover, M.D.?s Motion For Summary Judgment When There Were Genuine
Issues of Material Fact With Respect To Plaintiffs? Medical Malpractice
Claim. (R. 290).

 

Appellants argue that, because there were
genuine issues of material fact, the trial court erred in granting summary
judgment. This Court disagrees.

In reviewing a trial court?s entry of
summary judgment, an appellate court applies the same standard used by the trial
court. Perkins v. Lavin (1994), 98 Ohio App.3d 378, 381. Pursuant to
Civ.R. 56(C), summary judgment is proper if: (1) no genuine issue as to any
material fact remains to be litigated; (2) the moving party is entitled to
judgment as a matter of law; and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for summary judgment is
made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 327. The party seeking summary judgment initially
bears the burden of informing the trial court of the basis for the motion and
identifying portions of the record demonstrating an absence of genuine issues of
material fact as to the essential elements of the nonmoving party’s claims. Id.
The movant must point to some evidence in the record of the type listed in
Civ.R. 56(C) in support of his motion. Id. Once this burden is satisfied,
the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer
specific facts showing a genuine issue for trial. Id.

In his summary judgment motion, Dr. Stover
argued that he did not owe a legal duty to Lownsbury or Rebecca because a
physician-patient relationship was never established, and, absent a duty, the
appellants? cause of action fails. Appellants argued that they were entitled
to pursue their medical malpractice claim because a physician-patient
relationship had been established by express and implied contracts.

To establish a medical malpractice action, a
plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and
(3) proximate causation between the breach of duty and the injury. Littleton
v. Good Samaritan Hosp. & Health Center (1988), 39 Ohio St.3d 86, 92
(discussing the elements necessary to establish an underlying medical
malpractice claim in a survivorship action). "In a medical malpractice
case, the existence of a duty is dependent on whether there was a
physician-patient relationship." Pena v. N.E. Ohio Emergency Affiliates
(1995), 108 Ohio App.3d 96, citing Ryne v. Garvey (1993), 87 Ohio App.3d
145, 155. "?[T]he existence of a duty in a negligence action is a
question of law for the court to determine.?" Spence v. Oberlin
Laundry & Dry Cleaners, Inc. (Oct. 7, 1998), Lorain App. No. 97CA006913,
unreported, quoting Mussivand v. David (1989), 45 Ohio St.3d 314, 318.

In support of their contention that summary
judgment should not have been granted, appellants point to the deposition
testimony of two doctors. The doctors expressed their opinion that Dr. Stover
was obligated to supervise the residents working in labor and delivery and to
make required contact with patients, that Dr. Stover failed to do so, that in
failing to do so Dr. Stover failed to meet the minimum standard of care, and
that as a result, Dr. Stover caused Rebecca?s injuries. Appellants assert that
this expert testimony "alone entitles [them] to maintain their medical
malpractice claim against Dr. Stover." For additional support, appellants
cite to various medical standards and regulations, such as the standards of the
Accreditation Council on Graduate Medical Education.

Discussing the nature of the physician-patient
relationship, the Ohio Supreme Court held that:

The physician-patient relationship arises
out of an express or implied contract which imposes on the physician an
obligation to utilize the requisite degree of care and skill during the
course of the relationship. The relationship is a consensual one and is
created when the physician performs professional services which another
person accepts for the purpose of medical treatment.

The physician-patient relationship is a
fiduciary one based on trust and confidence and obligating the physician to
exercise good faith. As a part of this relationship, both parties envision
that the patient will rely on the judgment and expertise of the physician.
The relationship is predicated on the proposition that the patient seeks out
and obtains the physician?s services because the physician possesses
special knowledge and skill in diagnosing and treating diseases and injuries
which the patient lacks. (Citations omitted.)

 

Tracy v. Merrell Dow Pharmaceuticals (1991),
58 Ohio St.3d 147, 150. The fact that appellants? experts believe that
Dr. Stover breached a standard of care does not establish the existence of a
duty for purposes of a medical malpractice claim, nor do the regulations and
standards cited by appellants. In a medical malpractice claim, evidence
concerning the appropriate standard of care and breach of duty are only relevant
after a duty is established because the duty of care owed by a physician to a
patient arises out of the physician-patient relationship. The duty of care does
not exist in the absence of a physician-patient relationship.

The physician-patient relationship is one of a
personal nature. It is a relationship based on the trust of the patient and the
services of the doctor. In order to establish a physician-patient relationship
there must be some contact between the doctor and the patient. This may be
direct or indirect where the doctor takes an active part in diagnosing or
treating the patient even without the patient?s knowledge. Dr. Stover?s
advice was never sought by any of the resident-physicians or the specialist.
Taking the appellants? argument to its conclusion would be to hold the medical
director of any department responsible for other doctors? patients despite the
fact that the medical director had never seen or treated the patient or advised
the treating doctor.

Appellants also aver that summary judgment was
improper because a physician-patient relationship was established by virtue of
an express and an implied contract. At the time in question, Dr. Stover was
under contract with the East Market Group ("EMG"), an organization of
obstetricians who had contracted with ACH to provide twenty-four hour attending
and supervisory functions over ACH?s residents. Appellants assert that
pursuant to the contract between EMG and ACH, Dr. Stover was responsible to
supervise the residents who cared for Lownsbury, and that this contract created
a physician-patient relationship by implied contract. Appellants contend that a
physician-patient relationship was also established by express contract on
January 6, 1995, when Dr. Stover was the attending physician and Lownsbury
signed a consent to treatment form, because the form stated that "the
patient will be under the care of a Medical Doctor called the attending
physician who arranges for services and care of the patient."

Appellants state that "Ohio law has long
held that the physician-patient relationship arises out of an express or implied
contract," and, therefore, despite the fact that Dr. Stover did not treat,
diagnose, consult, or know of Lownsbury?s existence, a physician-patient
relationship was established by the ACH-EMG contract and the consent form. In
support, appellants cite to this Court?s decision in Pena, supra, and McKinney
v. Schlatter, M.D. (1997), 118 Ohio App.3d 328. However, both of those cases
are markedly distinguishable from the present case. Although the physician in McKinney
did not have any direct contact with the patient, the physician was actively
involved in the patient?s care. In Pena the physician was consulted,
had agreed to provide coverage for the patient?s primary physician, and
permitted the patient to be admitted under his name.

The necessary element missing in appellants?
argument is the nexus between the doctor and the patient. The contract between a
hospital and doctor does not in and of itself create a doctor-patient
relationship between that doctor and all the patients that come to the hospital.
While the consent form signed by Lownsbury may establish a contract between
Lownsbury and the hospital, it fails to establish a contract between the
Lownsbury and Dr. Stover. This is because there is a conspicuous absence of an
acceptance by Dr. Stover. Had Dr. Stover undertaken some form of service to
Lownsbury, there may have been an implied acceptance. However, that is not the
case.

This Court notes that there is a dispute over
three separate issues: (1) whether the provisions of the EMG-ACH contract,
signed in 1992, were still in effect at the time in question; (2) whether
Lownsbury signed the consent form on January 6, 1995; and (3) whether Dr. Stover
was an attending physician or an "on-call" physician on January 6,
1995. These issues are not material to this case, however, because what is not
in dispute is that Dr. Stover never saw, evaluated, treated, consulted, or knew
that Lownsbury was in the hospital.

This Court is mindful of the Ohio Supreme
Court?s explanation that the physician-patient relationship "is created
when the physician performs professional services which another person accepts
for the purpose of medical treatment," and that it "is predicated on
the proposition that the patient seeks out and obtains the physician?s
services," Tracy, supra. Therefore, this Court declines appellants?
request to find that, as a matter of law, a physician-patient relationship
exists between a supervisory physician and each and every patient who is seen in
his or her department while he or she is on duty.

Accordingly, construing the evidence most
strongly in favor of appellants, this Court finds that reasonable minds could
not have found that Dr. Stover owed a duty to Lownsbury or Rebecca. Therefore,
the grant of summary judgment was appropriate.

III.

The judgment of the common pleas court is
hereby affirmed.

Judgment affirmed.

– –

The Court finds that there were reasonable
grounds for this appeal.

We order that a special mandate issue out of
this Court, directing the County of Summit, Court of Common Pleas, to carry this
judgment into execution. A certified copy of this journal entry shall constitute
the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this
document shall constitute the journal entry of judgment, and it shall be file
stamped by the Clerk of the Court of Appeals at which time the period for review
shall begin to run. App.R. 22(E).

Costs taxed to Appellant.

Exceptions.

___________________________ LYNN C. SLABY

FOR THE COURT

 

 

SLABY, P.J.

BATCHELDER, J.

CONCUR

 

CARR, J.

DISSENTS, SAYING:

Because I disagree with the majority opinion?s
holding that no physician-patient relationship was established between Dr.
Stover and Lownsbury and Rebecca, I must respectfully dissent.

The majority declines to recognize a
physician-patient relationship in situations where a physician had no knowledge
of a patient?s existence. However, once a physician-patient relationship has
been established by contract, as in the present case, whether the physician
actually knows that the patient is in the hospital is irrelevant.

Deposition testimony established that Dr.
Stover was the attending physician on duty on January 6, 1995, that Dr. Stover
had the obligation to supervise ACH?s labor and delivery residents, and that
Dr. Stover, as attending physician, had the duty to oversee the care of
department patients. In his deposition, Dr. Stover testified that while
Lownsbury was a patient in his department he was "wasting time" in the
hospital staff room. EMG?s managing director testified that a fully trained
and credentialed physician should review each patient?s chart. Further, the
consent form signed by Lownsbury stated that "[t]he patient will be under
the professional care of a Medical Doctor called the attending physician
***."

Construing the evidence most strongly in favor
of appellants, reasonable minds could find the existence of a physician-patient
relationship between Dr. Stover and Lownsbury and Rebecca based on the consent
form that Lownsbury signed and the EMG-ACH contract. See Schendel v. Hennepin
County Medical Ctr. (Minn.App.1992) 484 N.W.2d 803. The physician-patient
relationship is a consensual relationship in which the patient knowingly seeks
the physician’s assistance and in which the physician knowingly accepts the
person as a patient. Tracy v. Merrell Dow Pharmaceuticals (1991) 58 Ohio
St.3d 147, 150. Here, Dr. Stover consented to the relationship when he entered
into the agreement to be the supervisory physician. In turn, Lownsbury consented
to the relationship when she signed the consent form to be under the care of an
attending physician. See Mozingo v. Pitt County Memorial Hosp. (1991),
331 N.C. 182, 189, 415 S.E.2d 341, 345. Dr. Stover was the only attending
physician.

Those doctors who are employed to teach,
supervise, and guide residents are not only permitted but also implicitly
encouraged by the rationale of the majority?s decision to shield themselves
from liability with bureaucratic armor. Such a result is erroneous in light of
Dr. Stover?s contractual agreement and the obligations arising therefrom.

Accordingly, I would reverse and remand.

 

APPEARANCES:

 

ROBERT D’ANNIBALLE, JR., Attorney at Law, 3173
Main Street, Weirton, West Virginia 26062, for Appellants.

 

JEFFREY E. SCHOBERT, Attorney at Law, 3721
Whipple Avenue, N.W., P.O. Box 35548, Canton, Ohio 44735, for Appellee, George
VanBuren, M.D.

 

MARK D. FRASURE, Attorney at Law, 3721 Whipple
Avenue, N.W., P.O. Box 35548, Canton, Ohio 44735, for Appellee, Linda Parenti,
M.D.

 

ANDREW S. MUTH, Attorney at Law, 301 West
Michigan Avenue, Suite 302, Ypsilanti, Michigan 48197.

 

JACK BEAM, Attorney at Law, 5910 S. University
Blvd., Suite C-18, No. 429, Littleton, Colorado 80121.