X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Sally B. Stutes asserted that the trial court erred in dismissing her suit against Todd Samuelson, M.D., due to the lack of a physician-patient relationship. Stutes’ suit against Dr. Samuelson arose out of the following facts. Stutes, a registered nurse, found a knot in the area of her right collarbone. Her primary care physician referred her to Dr. Michael Korenman, a general surgeon. He recommended a surgical open biopsy of the mass, which he felt was probably a swollen benign or malignant lymph node. Prior to surgery, Stutes signed two consent forms, one allowing Korenman to perform the surgery and another for another physician to perform a bone marrow aspiration and biopsy, if required. Both consent forms allowed the physician “and such associates . . . and other health care providers to perform such other procedures which are advisable in their professional judgment.” According to Stutes, there was no discussion with her about removing the mass during the surgery. During the surgery, Korenman located and mobilized the mass in question until it was free except for connections above and below it. At this point, Korenman stopped and decided that he wanted to “use another physician as a sounding board.” As a result, a circulating nurse asked Samuelson, who was in the midst of surgery in the adjacent operating room, to “poke your head into [Korenman's] room when you’re finished with your case.” When Dr. Samuelson entered Stutes’ operating room, Korenman asked questions about the general anatomy of the area and landmarks used to identify lymph nodes. Samuelson did not scrub in and did not enter the surgical field but came within 3 to 5 feet of Stutes, behind Korenman, which was not close enough to observe the surgical wound clearly. According to Korenman’s operative report, “I asked the ear, nose and throat physician [Dr. Samuelson, whose name does not appear in the report] to look in, and it was our opinion that this was a high probability malignant lymph node, and needed to be excised.” Samuelson recalled that he was asked to clarify the location of certain muscles and nerves and to confirm that the mass could be a lymphoma, but he also indicated that it could be a nerve-type tumor, which would include neuromas and schwannomas. This was the end of Sameulson’s involvement. Korenman then proceded with the surgery, removed the mass and sent it to pathology. It was determined to be a benign schwannoma with two nerve fragments attached. Following the surgery, Samuelson did not prepare or join in an operative report, did not speak to Stutes and did not bill for any professional services. Korenman testified that he did not intend to create a physician-patient relationship between Samuelson and Stutes, that his conversation with Samuelson was not determinative and that the decision to remove the mass was his alone. Samuelson testified that he expected Korenman to believe what he told him and to rely on the information he provided to him. Subsequently, Stutes sued the two physicians for “pain, mental anguish, and loss of motor function, and numbness in her right arm and hand” along with “disfigurement, physical impairment, and other injuries and damages” resulting from the surgery. A settlement was reached with Korenman and the trial court granted Samuelson’s motion for summary judgment based on the absence of a physician-patient relationship between Stutes and Samuelson. HOLDING:Affirmed. The court states that the only issue on appeal is whether Samuelson disproved that a physician-patient relationship existed between Samuelson and Stutes, because “malpractice is predicated on a physician-client relationship,” and a physician “cannot be liable for malpractice unless the physician breaches a duty flowing from a physician-patient relationship.” The court holds that, under the facts presented, no physician-patient relationship existed, as proven by Samuelson. The court finds that Samuelson’s role was that of a question-answerer, and he confirmed the thinking of Korenman. The court emphasizes that he appeared briefly in the surgical suite at the behest of Korenman, did not enter the surgical field, did not touch the patient, did not scrub in, was not in a position to direct a procedure, did not prepare a report, never spoke to the patient and did not bill for his time. Korenman remained responsible for the patient, and he testified that he alone made the decision to proceed with surgery and that his conversation with Samuelson was not determinative. Therefore, the court concludes that the trial court’s summary judgment was correct. OPINION:Bob McCoy, J.; Livingston, Walker, and McCoy, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.