Nbd Bank, Na v. Barry , 223 Mich. App. 370 ( 1997 )

566 N.W.2d 47 (1997) 223 Mich. App. 370

NBD BANK, N.A. TRUST DIVISION, Personal, Representative of the Estate of Victoria A. Rountree, Deceased, Plaintiff-Appellant,
v.
Michael S. BARRY, D.O., Defendant-Appellee, and
Grand Traverse Community Hospital, Sally Miller, D.O., James R. Johnson, D.O., William A. Schnurr, D.O., Osteopathic Surgeons, P.C., Robert C. Schwert, D.O., and Timothy L. Burke, M.D., Jointly and Severally, Defendants-Non-Parties.

Docket No. 190428.

Court of Appeals of Michigan.

Submitted March 4, 1997, at Lansing. Decided May 9, 1997, at 9:10 a.m. Released for Publication July 16, 1997.

Law Offices of George Constantine by Steven J. Pitzer, Northville, for plaintiff-appellant.

Willingham & Cote, P.C. by Eleanor E. Lynn, East Lansing, for defendant-appellee.

Before FITZGERALD, P.J., and MacKENZIE and TAYLOR, JJ.

PER CURIAM.

Plaintiff appeals as of right an order granting summary disposition pursuant to MCR 2.116(C)(10) to defendant, Michael S. Barry, D.O., in this medical malpractice action. We affirm.

In this case, we are presented with the issue whether a doctor who is contacted by a patient's treating physician to discuss treatment alternatives owes a duty of care to the patient whose case is discussed. In a factually similar case, Hill v. Kokosky, 186 Mich.App. 300, 463 N.W.2d 265 (1990), a pregnant woman was admitted to Riverside Osteopathic Hospital with an incompetent cervix. During the woman's hospitalization, her obstetrician, Dr. William Hole, contacted the defendants, who were physicians at the hospital, to ask their opinions about the case. The defendants spoke with Dr. Hole over the telephone and gave him their opinions based on the case history Hole related to them. Dr. Hole did not refer the patient to either defendant, and neither defendant contacted the patient, examined her, or reviewed her chart.

The patient gave birth to a child who suffered several medical problems. Plaintiffs alleged that the baby's injuries were caused in part by the defendants' substandard advice to Dr. Hole during their telephone conversation and that the defendants were liable to the plaintiff for this alleged malpractice. This Court, noting that in physician malpractice cases the duty owed by the physician arises from the physician-patient relationship, id. at 302, 463 N.W.2d 265, held that a physician-patient relationship does not arise from a treating physician's solicitation of a colleague's informal opinion on patient treatment. Id. at 303-304, 463 N.W.2d 265

In the present case, the decedent, Victoria Rountree, was admitted to Grand Traverse Community Hospital on July 8, 1991, by Sally Miller, D.O., with complaints of long-term diarrhea, weight loss, abdominal cramping, and fever. During Rountree's hospitalization, Dr. Miller contacted Dr. Barry, who is a member of the internal medicine department of the hospital, on multiple occasions to seek his opinion regarding Rountree's care based on the information Miller related to him. Dr. Miller did not refer Rountree to Dr. Barry, and Dr. Barry did not contact Rountree or examine her, and at most reviewed the chart with Miller on one occasion.

Miller died on August 31, 1991. Plaintiff alleges that Rountree's death was caused in part by the substandard advice offered by Dr. Barry to Dr. Miller and that Dr. Miller is liable to plaintiff for the alleged malpractice.

Plaintiff attempts to distinguish Hill on the basis that Dr. Barry had several consultations with Dr. Miller over a period. However, Hill does not indicate that the defendants had only one consultation with the treating obstetrician. Indeed, in its holding, the Court states that "the telephone conversations between Dr. Hole and defendants did not give rise to a physician-patient relationship between plaintiffs and defendants." Id. at 304, 463 N.W.2d 265 (emphasis added).

Nonetheless, even if the holding in Hill had been based upon a sole telephone conversation, we would see no reason for distinguishing Hill from the present case simply because Dr. Barry engaged in multiple conversations with Dr. Miller. In Hill, in finding that a physician-patient relationship did not exist, the Court indicated that

[n]either defendant knew, examined, or spoke with plaintiffs. [The patient] was not referred to defendants for treatment or consultation. Plaintiffs did not employ defendants, nor did they seek medical advice or treatment from defendants. Defendants' medical opinions were addressed directly to [the treating physician] as a colleague, and not indirectly to plaintiffs as patients. The opinions were not in the nature of a prescribed course of treatment, but were recommendations to be accepted or rejected by Dr. Hole as he saw fit. [Id.] at 304, 463 N.W.2d 265.]

Similarly, in the present case Dr. Barry's opinions to Dr. Miller were simply recommendations that Dr. Miller was free to accept or reject. Dr. Barry did not agree to treat the patient or to be a consultant on the case. Plaintiff points to an electrocardiogram (EKG) reading that Dr. Barry provided for Rountree during the hospital visit as establishing a physician-patient relationship. However, plaintiff does not connect the EKG reading, which was performed by Dr. Barry as part of his routine duties as a member of the department of internal medicine, to the alleged consultations that are the subject of this malpractice action. No facts have been presented that can support a conclusion that a relationship ever existed between Dr. Barry and Rountree. Upon this record, it cannot possibly be found that Dr. Barry owed a duty of care toward Rountree that could subject him to liability. See also Weaver v. Univ. of Michigan Bd. of Regents, 201 Mich.App. 239, 245, 506 N.W.2d 264 (1993).

Affirmed.