No. 124,357
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
RAYMOND L. MILLER, as Guardian and Conservator of
REGINA KAY MILLER,
Appellant,
v.
HUTCHINSON REGIONAL MEDICAL CENTER,
Defendant,
and
ESTATE OF JAMES A. ISAAC, M.D.,
By and Through its Special Administrator,
GREGORY JAMES ISAAC,
Appellee.
SYLLABUS BY THE COURT
1.
Under Kansas law, a patient bringing a medical malpractice action against a
physician must prove: (1) the physician owed the patient a duty of care; (2) the
physician's actions in caring for the patient fell below professionally recognized
standards; (3) the patient suffered injury or harm; and (4) the injury or harm was
proximately caused by the physician's deviation from the standard of care.
2.
Without a legally recognized physician-patient relationship, there is no duty of
care for purposes of establishing medical negligence.
1
3.
In a medical negligence action, the existence of a physician-patient relationship
typically presents a question of fact for the jury to answer.
4.
If a plaintiff is given the benefit of every dispute in the relevant evidence, the
district court may grant summary judgment for the defendant in a medical negligence
action so long as no reasonable jury could conclude a physician-patient relationship had
been established.
5.
On the particular facts presented, the district court erred in finding no physician-
patient relationship existed and granting summary judgment on that basis.
Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed
January 20, 2023. Reversed and remanded with directions.
J. Darin Hayes and Kaylea D. Knappenberger, of Hutton & Hutton Law firm, LLC, of Wichita,
for appellant.
Brian L. White and Mark R. Maloney, of Hinkle Law Firm LLC, of Wichita, for appellees.
Before ARNOLD-BURGER, CJ, ATCHESON, and WARNER, JJ.
ATCHESON, J.: This appeal turns on whether a neurologist formed a doctor-patient
relationship with a woman who sought treatment at the Hutchinson Regional Medical
Center when an emergency room physician there called him to consult on a tentative
diagnosis and the need for further diagnostic testing. Dr. James A. Isaac, the neurologist,
had agreed to serve as an on-call consultant to maintain admitting privileges at the
medical center. This narrow issue has come up in a medical malpractice action brought
2
on behalf of Regina Kay Miller, the woman, against the medical center and the two
physicians on the grounds they misdiagnosed her and, as a result, she suffered a
debilitating stroke.
The Sedgwick County District Court found no doctor-patient relationship existed
and for that reason granted summary judgment to Dr. Isaac's estate, which has been
substituted as the named defendant because the doctor died during this litigation. Without
such a relationship, there is no duty of care, and there can be no medical negligence
absent a legally recognized duty. Miller, acting through her husband as the nominal
plaintiff, has appealed the ruling.
A trilogy of Kansas Supreme Court cases sets out legal principles governing when
a consulting physician enters into a doctor-patient relationship. But the standards are
ragged and outline something short of a conclusive test. We must consider the summary
judgment evidence in the best light for Miller. Given the evidence and the governing law,
we conclude the district court erred in entering summary judgment—reasonable jurors
might find a doctor-patient relationship between Dr. Isaac and Miller. We, therefore,
reverse the judgment and remand to the district court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Because the appeal challenges a summary judgment, the standards of review in
both the district court and here dictate how we look at the relevant facts. So we set out the
standards before reciting the governing facts. See Bouton v. Byers, 50 Kan. App. 2d 34,
36-37, 321 P.3d 780 (2014). The standard, of course, has been often stated and is,
therefore, well known.
When considering summary judgment, the district court must view the evidence
properly submitted in support of and in opposition to the motion most favorably to the
3
party opposing the motion and give that party the benefit of every reasonable inference
that might be drawn from that record. Trear v. Chamberlain, 308 Kan. 932, 935-36, 425
P.3d 297 (2018); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900,
220 P.3d 333 (2009). The party seeking summary judgment has to show that even taking
the evidence in that light, there are no genuine disputes over any material facts and it is
entitled to judgment as a matter of law. Trear, 308 Kan. at 935; Shamberg, Johnson &
Bergman, Chtd., 289 Kan. 900. Basically, the moving party submits no reasonable
construction of the evidence would permit a jury to return a verdict for the opposing
party.
An appellate court applies the same standards in reviewing a challenge to the
district court's entry of summary judgment. We, therefore, owe no particular deference to
the district court's ruling, since it effectively applies a set of undisputed facts viewed
favorably to the plaintiff to the controlling legal principles. Summary judgment, then,
presents a question of law an appellate court can assess just as well as the district court.
See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173
(2009). Given those principles, we render an account of the facts favoring the plaintiff,
recognizing some of the key circumstances actually are disputed.
About 10 p.m. on a weekday evening in late January 2018, Raymond L. Miller
took his wife Regina to the emergency room at the Hutchinson Regional Medical Center.
They saw Dr. Li Jia, an emergency room physician, and reported that Regina had stroke-
like symptoms for about a minute earlier in the evening. (We refer to Regina as Miller in
the remainder of this opinion and refer to Raymond by his first name.) Miller was in her
early 40s and apparently had a history of migraines. Dr. Jia concluded Miller likely had a
"complex migraine" that can have symptoms mimicking a stroke. He recommended
against a CT scan that would help differentiate between a migraine and a stroke as the
cause of what Miller experienced.
4
That evening Dr. Isaac was on call for emergency room physicians at the medical
center. Under the arrangement with the medical center, Dr. Isaac and his medical partner,
another neurologist, each agreed to be available to consult with the emergency room
physicians 10 days a month. Providing on-call consultations was a condition for the two
neurologists being allowed to admit patients to the medical center. The agreement was
unwritten and could be characterized as a general understanding without much detail.
In a deposition, Dr. Jia testified he called Dr. Isaac around 11 p.m. to secure his
opinion about Miller's condition. The telephone call lasted several minutes, although the
precise duration is uncertain. According to Dr. Jia, he described Miller's clinical history
and symptoms to Dr. Isaac, outlined his diagnosis of complex migraine, and offered his
assessment that discharging Miller would be appropriate. Again, according to Dr. Jia, Dr.
Isaac agreed with the diagnosis and assessment, and the hospital record suggests Dr.
Isaac concluded there was no need for a CT scan.
The Millers twice asked Dr. Jia to contact the on-call neurologist. Dr. Jia,
however, also testified that he felt he needed to consult with Dr. Isaac about the diagnosis
before releasing Miller and to make sure Dr. Isaac would be available to see her the next
day. Dr. Isaac neither reviewed any clinical records nor spoke directly to either of the
Millers. He had not previously seen Miller as a patient.
In his deposition, Dr. Isaac offered a substantially different account of the
telephone call: Dr. Jia called simply to determine if he would see Miller as a patient the
next day, so he offered no medical opinion or advice. Consistent with the standards
governing summary judgment, both we and the district court have properly declined to
consider Dr. Isaac's testimony about the call with Dr. Jia. Resolving the obvious
inconsistency in those versions of the same event is a task entrusted to a jury or a district
court judge acting as the fact-finder during a trial. (Although Dr. Isaac's estate is now the
5
named party, we refer to Dr. Isaac in the balance of the opinion as if he were still the
defendant.)
After speaking with Dr. Isaac, Dr. Jia discharged Miller without ordering a CT
scan or other further testing and without treating her for a stroke. After returning home
with Raymond, Miller suffered a stroke leaving her with sufficiently severe and
permanent disabilities she can no longer manage her personal affairs. Raymond has been
appointed Miller's guardian and custodian. In that capacity, Raymond filed this action on
behalf of Miller against Dr. Jia, Dr. Isaac, and the Hutchinson Regional Medical Center.
To oversimplify an aspect of the case not directly relevant to this appeal, the theory of
liability is that Dr. Jia and Dr. Isaac deviated from appropriate medical standards by not
having Miller undergo a computed tomography angiography—a CT scan with a contrast
medium—that would have indicated the physical condition that caused the severe stroke
the next morning, prompting immediate treatment that would have averted the stroke.
We mention several markers in the procedural progression of the case. First, the
parties do not dispute venue properly lies in Sedgwick County. Second, Dr. Jia has settled
the claim against him, and he is no longer a defendant in the case. After granting
summary judgment to Dr. Isaac, the district court directed that the ruling be treated as a
final judgment under K.S.A. 2020 Supp. 60-254(b), permitting an immediate appeal. The
parties have not questioned the ruling, so we decline to do so on our own. See Ball v.
Credit Bureau Services, Inc., No. 111,144, 2015 WL 4366440, at *13-14 (Kan. App.
2015) (unpublished opinion). The claims against Hutchinson Regional Medical Center
remain unresolved in the district court.
Raymond Miller, as the formal plaintiff, has appealed the district court's decision
granting summary judgment to Dr. Isaac's estate. That is the sole issue before us.
6
LEGAL ANALYSIS
We have already set out the summary judgment standards applicable in the district
court and for appellate review.
Under Kansas law, a patient bringing a medical malpractice action against a
physician must prove: (1) the physician owed the patient a duty of care; (2) the
physician's actions in caring for the patient fell below professionally recognized
standards; (3) the patient suffered injury or harm; and (4) the injury or harm was
proximately caused by the physician's deviation from the standard of care. Burnette v.
Eubanks, 308 Kan. 838, 842, 425 P.3d 343 (2018); Russell v. May, 306 Kan. 1058, 1067-
68, 400 P.3d 647 (2017). Those elements, however, essentially presuppose the existence
of a legally recognized physician-patient relationship. And without that relationship, there
is no duty of care. Russell, 306 Kan. at 1069 ("[A] legal duty arises with the formation of
a physician-patient relationship."); Irvin v. Smith, 272 Kan. 112, 122, 31 P.3d 934 (2001)
("Absent the existence of a physician-patient relationship, there can be no liability for
medical malpractice.").
The Kansas Supreme Court has characterized the existence of a doctor-patient
relationship as a question of fact typically reserved for the jury to answer. Russell, 306
Kan. 1058, Syl. ¶ 5; Irvin, 272 Kan. at 119. Nonetheless, if a plaintiff is given the benefit
of every dispute in the relevant evidence, the district court may grant summary judgment
for the defendant so long as no reasonable jury could conclude a doctor-patient
relationship had been established. See Russell, 306 Kan. at 1069; cf. Estate of Belden v.
Brown County, 46 Kan. App. 2d 247, 276, 261 P.3d 943 (2011) ("Should the evidence
taken in the best light for a plaintiff nonetheless fail to establish a basis for a jury to
return a verdict for that plaintiff, the court may enter a summary judgment for the
defendant" on what would be a question of fact.). In granting Dr. Isaac's motion, the
district court mistakenly construed the summary judgment record as legally and factually
7
incompatible with any reasonable determination that Miller may have had a doctor-
patient relationship with Dr. Isaac.
To reiterate, the only issue before us is whether Miller has presented evidence
from which a jury might reasonably conclude she formed a physician-patient relationship
with Dr. Isaac. As we have indicated, three Kansas Supreme Court cases address the
formation of the relationship. Dr. Isaac, not surprisingly, zeroes in on Irvin. In that case,
the court held that a physician engaging in what it characterized as an "informal" or
"curbside" consultation with a colleague does not form a physician-patient relationship
with the colleague's patient. In turn, the patient could not sue the consulted physician for
medical malpractice, since there would be no relationship between them giving rise to an
actionable legal duty. 272 Kan. at 121-23.
In Irvin, a child living in western Kansas had a shunt or tube that drained excess
fluid that chronically accumulated around her brain. When the child began having
seizures and other symptoms possibly indicating a shunt malfunction, her local doctor
had her transferred to a Wichita hospital, where a pediatric specialist admitted her as a
patient. The admitting physician called a highly respected pediatric neurologist in
Wichita the same day for a consultation. The physician chose to contact the neurologist
because of his reputation. The neurologist was "'not on call'" at the hospital and had "no
contractual obligation . . . requir[ing] him to attend any patients at [the hospital]." 272
Kan. at 122.
The admitting physician and the neurologist had a lengthy telephone conference
and decided they should perform a mildly invasive diagnostic test the next day to
evaluate the shunt's capacity. The child appeared to be in no immediate danger. The
neurologist had not seen the child, offered no diagnosis for the cause of the seizures, and
suggested no treatment plan. The next morning, before the test could be done, the child's
condition rapidly deteriorated, and she suffered severe brain damage apparently because
8
the shunt failed. The child's parents filed a medical malpractice action against a host of
defendants including the neurologist. Pertinent here, the district court granted summary
judgment to the neurologist, finding he had no physician-patient relationship with the
child.
In reviewing the summary judgment ruling, the Irvin court noted the dearth of
Kansas decisions exploring when a consulting physician may enter into a doctor-patient
relationship creating an actionable legal duty. The court affirmed the judgment for the
neurologist and drew a distinction between informal or "curbside" consultations, on the
one hand, and "formal" consultations, on the other. The court found the neurologist
provided only an informal consultation and, as a matter of public policy, those sorts of
discussions should be insulated from legal liability in medical malpractice actions. 272
Kan. at 123. Two dissenting justices doubted the majority's division of informal and
formal consultations as a policy matter and would have found a jury question on the facts
as to the existence of a doctor-patient relationship. 272 Kan. at 135, 139 (Lockett, J.,
joined by Allegrucci, J., dissenting).
The Irvin court mostly sets out what it considers hallmarks of formal consultations
that establish physician-patient relationships and a concomitant duty of care. So,
"generally" the physician has to "personally examine" the patient. 272 Kan. at 120. But
that is not essential; "indirect contact" may be sufficient in some circumstances. 272 Kan.
at 120. A physician must expressly or impliedly agree to advise or treat the patient. The
patient, then, customarily seeks out the physician. 272 Kan. at 121. Yet, "an implied
physician-patient relationship may be found where the physician gives advice to a patient
by communicating the advice through another health care professional." 272 Kan. at 120.
The court described a "formal consultation" as entailing "a full bedside review" with a
"physical examination" of the patient and a review of clinical records. 272 Kan. at 123. A
doctor-patient relationship—and potential liability for malpractice—exists when the
doctor "assumes the role of treating the patient." 272 Kan. at 120.
9
But the court did not attempt to forge those observations into a set of factors or a
predictive legal test. They seem ill-suited to defining some overarching principle, and
they poorly fit certain medical specialties—most obviously, perhaps, radiology and
pathology in which the practitioners have little or no direct contact with the patient. The
Irvin dissenters noted as much in passing. 272 Kan. at 136 (citing and quoting Bovara v.
St. Francis Hospital, 298 Ill. App. 3d 1025, 1030-31, 700 N.E.2d 143 [1998]).
Ultimately, the court affirmed the summary judgment because of how the neurologist was
drawn into the consultation and the limited role he took ahead of the patient's precipitous
decline.
Although Irvin remains the leading Kansas appellate decision on when a
consulting physician may enter a doctor-patient relationship, it is bookended by two other
cases that looked at the formation of the relationship. Russell, 306 Kan. 1058; Adams v.
Via Christi Regional Medical Center, 270 Kan. 824, 19 P.3d 132 (2001). We discuss
them briefly as generally informing the issue.
In Adams, a family physician cross-appealed a jury determination he had a doctor-
patient relationship with a young woman who died from complications of an ectopic
pregnancy. The doctor was the family physician for the 22-year-old woman's parents and
her siblings but had not seen the woman as a patient for about four years. The woman's
mother called the doctor's service at about 9 p.m. and received an immediate return call
from the doctor. She reported that her daughter was 5 to 8 weeks pregnant and was
experiencing significant abdominal pain. The doctor, who had discontinued his
obstetrical practice, advised mother that abdominal pain was not unusual with pregnancy
and to take her daughter to the emergency room if she got worse and to have her see a
physician the next day. About three hours later, mother took the woman to the hospital.
The woman had a ruptured ectopic pregnancy that led to cardiac arrest and, in turn, to
brain death. The doctor later testified that he knew ectopic pregnancies pose serious risks
beginning at about 8 weeks, but he did not consider that possibility during the telephone
10
call with the woman's mother. A jury later found the hospital and the doctor liable in a
medical malpractice action. In an appeal, the doctor argued he did not have a physician-
patient relationship with the woman and, therefore, did not have any legal liability.
The court rejected the doctor's argument and found sufficient evidence to support
the jury's conclusion there was a physician-patient relationship with the woman
principally because the doctor took "some action to give medical assistance" rather than
deflecting mother's inquiry by saying he no longer provided obstetrical care or simply
referring her to another practitioner. Adams, 270 Kan. at 836-37. The court also
recognized that if the professional relationship between the doctor and the woman had
lapsed, the substantive medical advice transmitted during the telephone call with mother
"renewed" the relationship. 270 Kan. at 837. The doctor functionally treated the woman
by "express[ing] his medical opinion about her condition" and suggesting she "was
experiencing nothing unusual" in what turned out to be a life-threatening emergency. 270
Kan. at 837. And that was true even though the doctor did not see or speak to the woman
and provided his medical assessment to a proxy.
In Russell, the Kansas Supreme Court returned to the issue of when a doctor-
patient relationship exists, although the relevant point there turned on whether the
relationship had ended. 306 Kan. at 1070-71. In getting to that question, the court relied
on Adams for the proposition that "'the physician's express or implied consent to advise or
treat the patient is required for the relationship to come in to being.'" 306 Kan. at 1069
(quoting Adams, 270 Kan. at 835). The Adams court immediately went on to say that
consent would be inferred when a physician "take[s] some affirmative action with regard
to treatment of a patient." 270 Kan. at 835. The facts in Russell don't shed much light on
formation of the professional relationship for our purposes. There, a woman saw a
primary care physician who took a history, examined her, and made a referral to a
specialist for sophisticated diagnostic testing. The specialist then reviewed the test results
and met with the woman. The woman later saw a gynecologist for a routine checkup. The
11
physicians failed to diagnose the woman's breast cancer, and she sued all three for
medical malpractice. The court reversed the district court's ruling granting judgment as a
matter of law to the primary care physician the woman first saw because there was
sufficient evidence of a continuing duty of care (and, hence, a doctor-patient relationship)
to send the claim to the jury. 306 Kan. at 1070-71. The court also found sufficient
evidence on the other elements of the malpractice claim against the primary care
physician, determinations that are legally beside the point for our purposes.[1]
[1] Although this court's decision in Seeber v. Ebeling, 36 Kan. App. 2d 501, 141
P.3d 1180 (2006), involved a medical malpractice action against an on-call physician, it
is wholly uninformative given the facts. Seeber arrived at a Topeka hospital after
suffering serious injuries in a motor vehicle mishap. An emergency room physician
contacted Ebeling as the hospital's designated on-call neurosurgeon. After listening to the
ER physician's recitation of Seeber's condition, Ebeling refused to come to the hospital to
examine Seeber and offered no medical opinion about possible treatment. Ebeling told
the ER physician to contact an orthopedic surgeon affiliated with the hospital or to
transfer Seeber to another hospital. Seeber was eventually transferred. We affirmed the
district court's grant of summary judgment to Ebeling on the grounds he never established
a doctor-patient relationship with Seeber, since he refused to provide any medical opinion
on the injuries or a course of care. In turn, Ebeling could not be liable for medical
malpractice absent such a relationship. 36 Kan. App. 2d at 518. In discussing the
formation of doctor-patient relationships in Kansas, Seeber drew briefly from Irvin and
Adams without much elaboration. 36 Kan. App. 2d at 514-15.
As we have indicated, the Kansas appellate caselaw does not yield an especially
clear or harmonious structure for our task here. We can say the Irvin court treated the
pediatric neurologist as an "informal or curbside" consultant—a role that does not create
a doctor-patient relationship imposing a duty of care. The court, however, did not lay out
indicia of curbside consultations. Moreover, consistent with Adams, the neurologist in
Irvin withheld any assessment of the patient's condition and any recommendation for
treatment—deferring a professional opinion until the planned diagnostic test had been
completed. So for that reason, as well, there may have been no doctor-patient
relationship.
12
Likewise, so-called "curbside consultations" do not seem to have particularly well-
formed contours within the medical profession or in legal proceedings. Indeed, these
collaborations are known by different names among physicians: back door, hallway,
lunchroom, or coffee room consultations. Perley, Physician use of the curbside
consultation to address information needs: report on a collective case study, 94 J. Med.
Libr. Assoc. No. 2, 137, 138 (April 2006). As the terms suggest, the interactions tend to
"take place opportunistically," and the consulted physician is not compensated. The
consulted physician typically relies on information conveyed by the consulting physician.
And the consulting physician generally does not tell the patient about the consultation.
See Zacharias et al., Curbside Consults in Clinical Medicine: Empirical and Liability
Challenges, 49 J. L. Med. & Ethics 599, 599 (2021); Suri, Action, Affiliation, and a Duty
of Care: Physicians' Liability in Nontraditional Settings, 89 Fordham L. Rev. 301, 315-
16 (2020); Curbside Consultations, 7 Psychiatry (Edgmont) No. 5, 51-52 (May 2010); 94
J. Med. Libr. Assoc. No. 2, at 138; Berlin, Malpractice Issues in Radiology: Curbstone
Consultations, 178 Am. J. Roentgenology 1353, 1354 (June 2002). A survey of medical
practitioners indicated there were no settled rules for participating in curbside
consultations, although their use was an expected and commonplace part of the
profession. 94 J. Med. Libr. Assoc. No. 2, at 141.
A recent examination of the law across jurisdictions on curbside consultations, on-
call physicians, and the imposition of malpractice liability suggests myriad lines of
judicial analyses, often coupled with fact-intensive inquiries, leading to varied outcomes.
89 Fordham L. Rev. at 304 (recognizing "divergent approaches courts use" in cases
involving curbside consultants and on-call physicians); see also Zuckett and Ryckman,
No Physician-Patient Relationship Means No Duty, Right? Warning: Get a Second
Opinion, 56 DRI For the Defense No. 8, 12 (August 2014) (noting varied and changing
judicial views on establishment of physician-patient relationships). This division is
nothing new, as the authority compiled in Kelley v. Middle Tennessee Emergency
Physicians, P.C., 133 S.W.3d 587, 593-96 (Tenn. 2004), and the dueling citations in the
13
Irvin majority opinion and dissent illustrate. Succinctly, the law around the country is a
hodgepodge.
But with the expanded use of on-call physicians and the rise of telemedicine in the
20 years since Irvin was decided, see 89 Fordham L. Rev. at 303, appellate courts in a
number of jurisdictions have examined anew how the duty of care for medical
practitioners should be defined and have endeavored to outline more cohesive tests than
what Kansas common law now provides. For example, in Kelley, the Tennessee Supreme
Court recognized that a consulting physician may create an actionable, though implied,
doctor-patient relationship with an individual he or she never meets by "affirmatively
undertak[ing] to diagnose and/or treat a person, or affirmatively participat[ing] in such
diagnosis and/or treatment." 133 S.W.3d at 596. More recently, the Oregon Supreme
Court similarly found that an on-call physician who does not see a patient may,
nonetheless, form an implied doctor-patient relationship if "the physician either knew or
reasonably should have known that he or she was diagnosing the patient's condition or
providing treatment to the patient." Mead v. Legacy Health System, 352 Or. 267, 279, 283
P.3d 904 (2012). The determination will be informed by the specific circumstances,
including "the customary practice within the relevant medical community, the degree and
the level of formality with which one physician has assumed (or the other physician has
ceded) responsibility for the diagnosis or treatment, the relative expertise of the two
physicians, and the reasonable expectations, if any, of the patient." 352 Or. at 278-79.
Those courts rely heavily on an element of foreseeability—whether the consulted
or on-call physician knew or should have known the consulting physician would rely on
the opinions as substantive diagnoses or treatment recommendations—in fashioning a test
for doctor-patient relationships creating a duty of care. In 2019, the Minnesota Supreme
Court went a step further and recognized a duty of care essentially based on foreseeability
alone without requiring a traditional or implied physician-patient relationship. Warren v.
Dinter, 926 N.W.2d 370, 375 (Minn. 2019). The court held: "[A] duty arises between a
14
physician and an identified third party when the physician provides medical advice and it
is foreseeable that the third party will rely on that advice" and that professionally
substandard advice may cause harm. 926 N.W.2d at 376. Acknowledging its treatment of
medical negligence to be uncommon, the Warren court found support in earlier
Minnesota cases and what it characterized as analogous authority in four other states. 926
N.W.2d at 377 & n.6.
We neither presume to endorse nor apply any of those decisions and confine
ourselves to the precepts that may be derived from Kansas authority, primarily as stated
in Adams, Irvin, and Russell. The somewhat fragmentary state of the law complicates the
tasks facing practitioners and district courts, including presenting and resolving
dispositive motions and, likely, instructing juries. Although that law may be less than
analytically comprehensive, we conclude there are sufficient points of distinction
between the circumstances here and those in Irvin to require a different result at this stage
in the litigation. As we explain, there are adequate facts, taking the evidence in the best
light for Miller, to preclude summary judgment.
On summary judgment, Dr. Isaac endeavored to draw his consultation with Dr. Jia
into the realm of a curbside exchange that created no physician-patient relationship with
Miller. To successfully resist the effort, Miller simply must point to evidence that would
permit a reasonable jury to find there was such a relationship. We do not have to be
persuaded a given jury would come to that conclusion—only that it fairly might. Estate of
Belden, 46 Kan. App. 2d. at 276 (In reviewing summary judgment granted a defendant,
the appellate court asks whether "a reasonable jury might render a verdict for" plaintiff
and "do[es] not consider the probability of such a verdict, only its possibility."); see
Fusaro v. First Family Mortg. Corp., 17 Kan. App. 2d 730, 735, 843 P.2d 737 (1992)
(defendant's summary judgment motion should be denied if submissions contain
sufficient evidence so that "a jury might reasonably find for the plaintiff"); Cullison v.
15
City of Salina, No. 114,571, 2016 WL 3031283, at *6 (Kan. App. 2016) (unpublished
opinion). Miller crosses that comparatively low threshold.
• The communication between Dr. Jia and Dr. Isaac took place in an established
framework unlike a customary curbside consult and bore earmarks of formality. First, Dr.
Jia contacted Dr. Isaac because he was the hospital's designated on-call neurologist.
Although being "on-call" does not itself create some sort of physician-patient
relationship, being called could depending on the exchange of information that follows.
Conversely, in a prototypical curbside consultation, the consulting physician buttonholes
a colleague (sometimes a specialist, sometimes not) to "run something by" the consulted
physician. The consulted physician has no reason to expect the inquiry and may be
chosen because of a collegial relationship with the consulting physician, a sound
reputation in the professional community (as was true in Irvin), or mere happenstance,
e.g., being present in the lounge. Viewed benignly, those informal exchanges provide
some check that the consulting physician hasn't overlooked a fair possibility in making a
differential diagnosis or in assessing a patient's treatment options.
Here, as the on-call neurologist, Dr. Isaac expected the type of call he received
from Dr. Jia. He had an agreement with the medical center to provide that service. Dr.
Isaac knew Dr. Jia was in the midst of treating a patient. Dr. Jia outlined the patient's
symptoms, relevant clinical history, and a possible diagnosis and course of care—
discharge with no immediate treatment and a referral for Miller to see Dr. Isaac the next
day. The exchange was not a casual one occurring at a time and place removed from the
consulting physician's interaction with the patient.[2]
[2] In this respect, the Irvin decision creates an unhelpful labeling that draws a
legal distinction between "formal" and "informal" medical opinions. A formal opinion
flows from a meeting between the doctor and the patient; a review of a chart, test results,
and medical history; and a physical examination—all leading to a diagnosis and treatment
or a referral to another physician. Rendering a formal opinion creates a doctor-patient
16
relationship. Conversely, an informal opinion is something less than a formal opinion
typified by a curbside consultation and does not create a doctor-patient relationship. That
binary differentiation, even as a first cut rather than a legally determinative one, seems
almost obtusely indifferent to the varied factual circumstances attendant to medical
consultations. Although broad labeling may be a risky endeavor, a better starting place
may be dividing "professional" opinions from "casual" opinions of the sort recognized as
curbside consultations. A professional opinion, rendered through a formalized process
commonly with some documentation, would be a necessary condition for a doctor-patient
relationship. Returning an after-hours call from a patient acting as a proxy for an
immediate family member in distress, as in Adams, may be sufficiently formal when the
physician then offers a medical opinion.
• Participating in ad hoc curbside consults, either as the consulting physician or the
consulted physician, is an accepted, if unregimented, aspect of medical practice. So the
consulted physicians offer their off-the-cuff views without compensation and in the loose
expectation of a reciprocal professional courtesy should they seek out a curbside
consultation. Nothing more.
Dr. Isaac's involvement here was markedly different. He had a set arrangement
with the medical center requiring him to be available on call 10 days a month, and his
practice partner had to cover an additional 10 days a month. The neurologists provided
the on-call coverage as a condition for admitting their patients to the medical center—a
thing of value. The neurologists and the medical center exchanged on-call services for
admitting privileges in a mutually beneficial agreement. Their arrangement may not have
been reduced to writing with a slew of provisos and conditions, but it was formalized
through the unbroken performance of the interlocking obligations over time.
Dr. Isaac, therefore, consulted with Dr. Jia because of his established and specific
obligation to the medical center rather than as a part of a convention of the medical
profession encouraging informal discussion between practitioners. At the summary
judgment stage, we may infer the arrangement required and the medical center expected
Dr. Isaac to provide thorough and carefully reasoned assessments in his capacity as an
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on-call physician. See Crabb v. Swindler, Administratrix, 184 Kan. 501, Syl. ¶ 2, 337
P.2d 986 (1959); see also David v. Hett, 293 Kan. 679, 696-97, 270 P.3d 1102 (2011).
And that requirement would inure to the practical, if not the legal, benefit of the patients.
• An informal opinion of the sort provided in a curbside consultation typically is
neither documented nor conveyed to the patient. It functions mostly as a hedge against a
gross oversight on the part of the consulting physician. Here, the facts as we must take
them, are quite different and portray a much more formal and professional exchange
between Dr. Jia and Dr. Isaac.
As we have already explained, Dr. Jia contacted Dr. Isaac precisely because he
was the on-call neurologist and in that capacity had years of experience and specialized
medical training and practice Dr. Jia did not as a much younger emergency room
physician. Dr. Jia was looking for guidance beyond a typical curbside consultation. As
we have said, he described Miller's salient symptoms and history to Dr. Isaac and
outlined his diagnosis of a complex migraine and possibly his recommendation to forego
a CT scan. Dr. Isaac then lent his professional expertise to confirm Dr. Jia's conclusion
about the cause of Miller's symptoms and apparently endorsed dispensing with additional
diagnostic testing.
Even the time of the call—about 11 p.m.—suggests a purpose of more substance
and urgency than the classic casual curbside consultation. Dr. Jia sought a specialist's
studied assessment of a patient who might be experiencing symptoms of a relatively
benign, if uncomfortable, headache or of a potentially life-threatening stroke. He wanted
something more than an informal opinion. And while an on-call physician would
anticipate fielding inquiries outside of usual business hours, he or she presumably ought
to consider a late-night inquiry from the emergency room to be of immediate importance
to the doctor making the call and the patient.
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Again, we may (and really must on summary judgment review) infer that Dr. Isaac
knew Miller and her husband remained in the emergency room, so he could have spoken
to either of them directly or solicited additional information from them through Dr. Jia.
He also would have understood that because Miller had not been released, Dr. Jia's
clinical assessment had not been implemented and easily could have been changed
without, for example, requiring Miller to return to the medical center. In some strict
literal sense, Dr. Isaac did not offer a diagnosis of or treatment plan for Miller but only
because he concurred with Dr. Jia. His agreement entailed a professional opinion not
unlike the physician's conclusion in Adams that the young woman's abdominal cramping
likely was a normal side effect of her pregnancy rather than a medical emergency and,
thus, required no further diagnosis or immediate treatment.
Two other factual circumstances tend to separate this case from the sort of
informal opinions the court discussed in Irvin. First, the Millers explicitly asked Dr. Jia to
get a second opinion from the on-call neurologist. The summary judgment record is silent
on whether Dr. Jia conveyed their request to Dr. Isaac in so many words. But, as we have
said, Dr. Isaac knew they remained at the medical center and were waiting on his
discussion with Dr. Jia. Second, Dr. Jia documented the substance of his consultation
with Dr. Isaac in Miller's medical chart and orally informed the Millers of Dr. Isaac's
medical opinion. The documentation and dissemination of Dr. Isaac's conclusion lends
the consultation a formality absent from curbside consults and similar informal
discussions among medical peers. Those characteristics also would be consistent with a
doctor-patient relationship between Dr. Isaac and the Millers, albeit one established
through Dr. Jia.
Viewed in its entirety and favorably to Miller, the summary judgment record
would permit a jury to conclude Dr. Isaac formed at least an implied physician-patient
relationship with Miller arising from his consultation with Dr. Jia. See Adams, 270 Kan.
at 835. The professional exchange had indicia of formality missing from curbside
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consultations that do not implicate such a relationship between a patient and the
consulted physician. Prominent among those indicators are the Millers' request for the
consultation, their remaining at the emergency room while Dr. Jia consulted with Dr.
Isaac, and the formal documentation of the consultation in the patient chart and its oral
communication to the patient.
We, therefore, reverse the district court's summary judgment for Dr. Isaac's estate
and remand for further proceedings consistent with this opinion. In doing so, we say no
more than the available evidence was sufficient, first, to create a jury question and,
second, to permit the finding of a doctor-patient relationship as a reasonable implication
drawn from that evidence. We should not be understood to be ruling that's the only
implication. We, likewise, express no view on any other issue in this litigation.
Reversed and remanded for further proceedings.
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