Gross v. Burt

Click here for the full text of this decision FACTS:Twins Hunter and Tyler were born to Alyssha Taylor and Keith Burt on Dec. 26, 1999 at Harris Methodist Hospital. They were premature and both were placed in the neonatal intensive care unit until February 1997. In the NICU, Hunter was identified as Twin B. Both twins were given the last name of Taylor. Hunter was found to be at risk for retinopathy of prematurity (ROP), a condition that lead to retinal scarring, vision loss and even blindness. At-risk babies require serial screening. In the course of their stay, the twins were seen by several doctors who ordered screenings on Hunter. An order for Dr. Robert Gross, a pediatric ophthalmologist, to perform a screening on Hunter, was written as being for “Twin B.” Gross found evidence of Stage I ROP in one eye. Nurses helped Alyssha make appointments for both twins at Gross’ office for after their discharge, but she used the names Hunter and Tyler Burt. Twin A was discharged Feb. 5, and Twin B was discharged Feb. 13. In the meantime, Alyssha selected a pediatrician for the babies, and she took Tyler (Twin A) to see that doctor on Feb. 12. The doctor confirmed both babies’ appointments with Gross on Feb. 17, and the pediatrician was aware of Gross’ initial ROP diagnosis. The NICU also confirmed the twins’ appointment with Gross on Feb. 17 and told Alyssha and Keith about the importance of the follow-up appointment. Alyssha did not, however, go to the Feb. 17 appointment, saying she didn’t have a referral. Her pediatrician completed the referral on Feb. 19, so Alyssha made another appointment for Feb. 28. She did not go to that appointment, either, as the twins had been hospitalized for a virus on Feb. 24. Alyssha and Keith changed pediatricians in March, and the twins did not see a pediatric ophthalmologist at all until June 1997. At that time, they were both diagnosed as being legally blind. Alyssha and Keith, now both going by the last name of Burt, sued several parties at Harris Methodist, as well as Gross. Gross was found to be 15 percent liable for Hunter’s damages. The other defendants were found in varying degrees to be 80 percent responsible for each of the twins’ damages, and the parents were found to be 5 percent negligent. The Burts settled with their first pediatrician, so an appeal of the jury’s verdict was brought by one of the health care facilities, Gross and the Burts’ second choice of pediatrician. On their initial appeal, this court reversed the verdict against all three. The Burts then filed a motion for rehearing, and a motion for rehearing en banc. HOLDING:Both motions denied; trial verdict reversed and rendered against the Burts. The court’s majority opinion mirrors its opinion originally issued Feb. 26, 2004. In that opinion, the court went over the timeline in minute detail, listing every action taken and conclusion drawn for each party. Gross challenged the legal and factual sufficiency of the evidence relating to the physician-patient relationship between himself and Hunter. Gross argued that his relationship with the baby ended upon completion of the initial ROP screening in the NICU. He added that he never established a relationship with anyone named Hunter Burt, he never acted negligently toward Hunter, and none of his conduct proximately caused injury to Hunter, Alyssha or Keith. The court finds that it must determine whether that relationship terminated once Gross reported his findings to the twins’ NICU physician or whether it continued. Likewise, the court must decide whether a “Dear Parent” Gross sent to Alyssha (the letter described what ROP is, how it is best diagnosed and treated, and how the parents “would be contacted by [the] baby’s pediatric ophthalmologist”), the health plan Gross operated under, or the scheduled-but-missed appointments created a continuing physician-patient relationship between Gross and Hunter. The court rules that there was no physician-patient relationship. The “Dear Parent” letter was a form letter, the court finds, a unilateral communication that cannot create a physician-patient relationship. The letter does not identify the patient or the parents to whom it is written. While consent to have a physician-patient relationship may be implied, it cannot be based upon this type of form letter alone. Furthermore, Alyssha admitted she didn’t see the letter. The court finds that even if it assumes that the health plan constituted evidence of Gross’ willingness or obligation to treat Hunter, Hunter’s parents never actually took Hunter to see Gross. The agreement Gross had with the plan required the physician not to refuse treatment when and if requested by a member patient and referred by another plan member. No one ever took Hunter to Gross’ office, though, so he never could have refused to treat Hunter. As for the missed appointments, the court notes that the Burts never followed through with setting up a third eye appointments with Gross. Instead, they went to another pediatric ophthalmologist. The court rules this is further evidence that neither Alyssha nor the children’s subsequent pediatrician thought they were required to see only Gross or that they had a binding relationship with him that required him to track them down regarding their missed appointments. “If we were to expand the duty of continued care to all patients who are seen at hospitals by consulting physicians beyond the hospital setting based solely upon the fact that they were seen by the physician in the hospital, there would be no end to the physician-patient relationship. Thus, all specialists or on-call physicians could be bound to an endless duty of continued care even if they had completed their assigned duty at the hospital and the patient failed to follow through. This is not to say that the ophthalmologist on staff or on call at a hospital does not owe a duty to correctly diagnose and/or treat a patient while at the hospital, but only that it is not enough to create a continuing duty. Where, as here, the specialist is requested to perform an initial screening and report the findings back to the NICU physician, who continues the control over the patient’s care, we cannot impose a post-hospital never-ending duty.” OPINION:Livingston, J.; Livingston, Walker and Day, JJ. DISSENT:Walker, J. Viewing the evidence in the light most favorable to the jury’s verdict, disregarding all evidence and inferences to the contrary, more than a scintilla of evidence exists of a physician-patient relationship between Gross and Hunter with respect to Hunter’s ROP following the in-hospital examination. “Dr. Gross examined Hunter in the hospital, diagnosed him with ROP, and knew that Hunter required follow-up appointments with a pediatric ophthalmologist. Dr. Gross recommended a follow-up appointment in two weeks � with himself. He did not tell Alyssha or anyone at the hospital that the follow-up appointments should not be scheduled with him. Dr. Gross voluntarily approved a letter identifying himself as “your pediatric ophthalmologist,” knowing the letter would be attached to Hunter’s basinet in the hospital. Dr. Gross took Hunter’s ROP screening form to his office so Hunter could be entered as an existing patient for ROP follow-up appointments. Alyssha called, scheduled, and rescheduled appointments for Hunter with Dr. Gross. Thus, more than a scintilla of evidence exists that . . . Dr. Gross did see and evaluate the patient, i.e., Hunter, to diagnose him for a course of treatment.” Additionally, more than a scintilla or evidence exists that Gross either expressly or impliedly consented to the continuation of a physician-patient relationship with Hunter, and there was no conclusive evidence that the relationship was ever terminated. DISSENT FROM THE DENIAL OF MOTION FOR REHEARING EN BANC AS TO GROSS:Gardner, J. “This appears to be a case of first impression involving an increasingly common issue of the extent of a physician-patient relationship arising out of consultation by a specialist in the hospital setting. . . . There appears to be no reported case involving a disputed issue of whether a physician-patient relationship with a consulting or on-call specialist extended beyond an examination or treatment in the hospital setting; much less is there a case dealing with this issue involving additional factors such as those present here.” The dissent also notes that while it agrees that the sole factor of just seeing a patient as a consulting physician may not be enough, this case presents additional factors that should be considered: the setting up of appointments for a “follow-up” office visit, a call from Gross’ office to remind the mother of the appointment and need for a referral, a rescheduling of the appointment, setting up a chart on Hunter by Gross at his office with a view toward follow-up visits, and the “Dear Parents” letter that arguably refers to Gross as the pediatric ophthalmologist who was to contact the parents regarding any significant finding.