Nichelson v. Curtis

JUSTICE GREEN,

dissenting:

The question presented here is difficult and is apparently one upon which there is no direct authority. However, I cannot agree that, taking the evidence of record before us most favorably to plaintiff, no showing was made that defendant Hurshman owed her a duty of care in advising her husband as to the condition of the baby.

Whether Hurshman, merely by virtue of his employment as pediatrician for the newborn child, had a duty to plaintiff to use skill commensurate with one in that specialty, in advising plaintiff’s husband of the condition of the child, is a question upon which there is no direct authority in this State. (See 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers sec. 229, at 358 (1981).) However, superimposed upon any duties owed by Hurshman as a pediatrician were other duties which arose when, while in the operating room at plaintiff’s employment, he agreed to assist Curtis in determining whether a sterilization procedure should be performed. In doing this, he was aiding Curtis in the performance of Curtis’ services directly to plaintiff, and thus created a physician-patient relationship at that time.

Hurshman admitted that the reason he made inquiry of plaintiff’s husband in regard to whether the sterilization should be performed was because of the question of the condition of the baby. The circumstances gave a strong inference that plaintiff, who was under anesthetic, had delegated to her husband final power to determine whether that sterilization should be performed. Were this so, had Curtis advised plaintiff’s husband in regard to the baby’s condition in order to get final authority to perform a procedure that would otherwise be a battery, he would have been under a duty to use professional care in advising as to the condition of the baby. The same duty would be imposed upon Hurshman when he agreed to assist Curtis.