Summary
In Bienz v. Central Suffolk Hosp., 557 N.Y.S.2d 139, 163 A.D.2d 269 (N.Y.App. Div. 1990) the court held that a question of fact as to the existence of a physician-patient relationship existed where the patient had personally telephoned a physician and received advice over the telephone.
Summary of this case from Hammonds v. Jewish Hosp. of St. LouisOpinion
July 2, 1990
Appeal from the Supreme Court, Suffolk County (Copertino, J.).
Ordered that the order is affirmed, with costs.
The question presented on appeal, as it is phrased by the appellant in his brief, is "[w]hether a telephone call to a physician's office for the purpose of initiating treatment is sufficiently [sic] to create a physician-client relationship". The appellant's argument is based on his assertion that, as a matter of law, such a communication is insufficient to create the sort of physician-patient relationship which is necessary in order to support a medical malpractice cause of action. We agree with the Supreme Court that this assertion is incorrect.
As noted by the Supreme Court in its decision, it was not entirely clear "what was actually said to decedent and his wife, [and] what reliance they could have reasonably placed in [appellant] as the result of their conversations with him". A medical malpractice cause of action may be based on allegations that a physician negligently gave advice to his patient as to what course of treatment to pursue. Whether the physician's giving of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship had arisen is ordinarily a question of fact for the jury (see, Hickey v. Travelers Ins. Co., 158 A.D.2d 112; Tolisano v. Texon, 144 A.D.2d 267, 278, revd on other grounds 75 N.Y.2d 731; Twitchell v. MacKay, 78 A.D.2d 125; O'Neill v. Montefiore Hosp., 11 A.D.2d 132).
Since the appellant failed to prove, as a matter of law, that no physician-patient relationship had arisen at the time of the alleged malpractice, this and the remaining issues of fact present in the case should be resolved by a jury. Bracken, J.P., Eiber, Sullivan and Rosenblatt, JJ., concur.