dissenting
I respectfully dissent. The elements of a negligence claim are familiar to any first-year law student: duty, breach, proximate cause, and damages. See William L. Prosser, The Law or Torts, § 30, at 146 (3d ed.1964). Liability for the failure to act requires "some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act." Id. note 42, § 54 at 335; See also Restatement (Second) of Torts § 314 cmt. c. (1965).
Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct.App.1980), was one of the earliest cases imposing malpractice liability under a contract, despite a lack of personal contact between the parties. Dr. Randolph, the on-call physician, refused to treat Hiser who had arrived at the hospital in a semi-comatose condition due to diabetes. Dr. Randolph told the nurse to call the patient's treating physician who then refused to come in claiming that Dr. Randolph was on call and therefore responsible to the patient. The chief-of-staff eventually came to treat the patient who died the next day. Dr. Randolph asserted he had no duty to treat the patient. In reversing the summary judgment granted in Dr. Randolph's favor, the Arizona Court of Appeals observed that in accepting payment for his on-call services and consenting to hospital by-laws, Dr. Randolph was obligated to treat Hiser.
While the various doctors in this case indicated that they were of the belief they had the right to refuse to treat an individual under varying cireumstances, the obviously intended effect of the bylaws and rules and regulations [of the hospital] was to obligate the emergency room doctor 'on call to provide emer-geney treatment to the best of the doe-tor's ability to any emergency patient of the hospital.
Id. at 777-78.
The Millers also direct us to McKinney v. Schlatter, 118 Ohio App.3d 328, 692 N.E.2d 1045, 1050 (1997). In that case the court determined that whether a physician-patient relationship existed between a patient and an on-call cardiologist was a question for the jury.
The Hiser and McKinney cases are cas-ily reconciled with relevant portions of the Henry County Memorial Hospital Bylaws which provide: "[The members of the Medical Staff must accept and carry out such responsibility as the agents of the Governing Body in cooperation with the Administration of the Hospital in order to fulfill the Hospital's obligation to its patients." R. 117. In light of this provision, and the result reached in Hiser, a patient-physician relationship between Mrs. Miller and Dr. Martig was first established by contract.
The physician-patient relationship between Mrs. Miller and Dr. Martig was also established as Dr. Martig provided health care service to Mrs. Miller. Under the Bylaws the term "consultation means the rendering of patient consultation services by a practitioner upon a written request from the patient's admitting or co-admit*48ting practitioner ..." Dr. Griffith, Mrs. Miller's doctor, had called the obstetrical nurse and requested that Dr. Martig be contacted. It was Dr. Griffith's request that Dr. Martig talk to Mrs. Miller about spinal narcotics. Based on this request, Dr. Martig actually consulted with Mrs. Miller.
When Dr. Martig talked to Mrs. Miller at Dr. Griffith's request, he was providing patient consultative services regarding "an act ... for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement .... at the Hospital." Ind.Code § 34-18-2-13. Whether Dr. Martig's consultative services met the standard of care was a question of fact for the Medical Review Panel to decide.
Mrs. Miller was a foreseeable patient at the hospital and Dr. Martig's attempt to delegate his on-call duty to Dr. Griffith failed because Dr. Griffith was not qualified as an on-call anesthesiologist Dr. Mar-tig's presence as an "on-call" anesthesiologist created a false sense of security that an anesthesiologist would be available to treat emergency obstetrical situations on which Mrs. Miller relied. Perhaps, if Mrs. Miller had known of Dr. Martig's inability to perform epidurals, she may have gone to a different hospital that had a qualified anesthesiologist on-call. Given the uncon-troverted evidence of the hospital by-law requirements, Mrs. Miller had a reasonable expectation of a contract between the hospital and Dr. Martig requiring him to provide emergency room treatment when on call.
The question remains, however, as to whether Dr. Martig met the standard of care for on-call anesthesiologists and the answer to that issue should not have been decided by a preliminary determination of the trial court. Once a doctor-patient relationship gives rise to a duty, the plaintiff must prove that the doctor violated the standard of care practiced by the same type of physician in his community.
Where the hospital has exercised reasonable care in administering its emergency room procedures, but the on-call physician has failed to exercise reasonable care in undertaking his attendant duties, the Hability falls on the physician as the party in the best position to prevent the negligent act.
The trial court exceeded its jurisdictional authority to make a preliminary determination of law under the Medical Malpractice Act because the physician-patient relationship was established, as a matter of law, when Dr. Martig contracted with Henry County Memorial Hospital to provide anesthesia for its hospitalized patients.
I would reverse the trial court's grant of summary judgment in favor of the appel-lee-defendant, Dr. John Martig.