Seeber v. Ebeling , 36 Kan. App. 2d 501 ( 2006 )

Greene, J.,

concurring: I write separately to express an analytical concern about the majority’s discussion of Restatement (Second) of Torts § 324A (1965). Lurking below the surface of the majority’s opinion is the question whether physicians should be exempt from liability under this precept. I would hold they should not.

Clearly, this Restatement section has been adopted in Kansas. See Ingram v. Howard-Needless-Tammen and Bergendoff, 234 Kan. 289, 294-95, 672 P.2d 1083 (1983). Ebeling argues, however, that “numerous courts have rejected [the] assertion” that “a general negligence claim may he . . . for neglect of professional duties under the auspices of § 324A ... in the absence of a physician-patient relationship,” citing cases from other jurisdictions but also relying on Irvin v. Smith, 272 Kan. 112, 31 P.3d 934 (2001). Although the majority states that Seeber fails to cite any Kansas case which has extended § 324A to create a duty upon a physician, I would emphasize that our Supreme Court has not had the opportunity to address the question.

I realize that our Supreme Court in Irvin recognized that in a medical malpractice case, the existence of the duty of care is dependent on the existence of a physician-patient relationship. Irvin, 272 Kan. at 118-19. As I read Irvin, however, the parties did not urge, nor did the court analyze, whether Restatement (Second) of Torts, § 324A would impose a duty independent of the traditional duty acknowledged in medical malpractice cases, which requires a physician-patient relationship. I do not think we should exempt any class of potential tort defendants from the liability imposed by the Restatement section. Obviously, my analysis would dictate that, where applicable, there might be two separate claims for relief against a physician, one for traditional medical malpractice negligence, and another for liability under the Restatement section.

Here, I would not require a physician-patient relationship in analyzing whether Ebeling had a duty to Seeber under the Restatement section. Instead, I would apply § 324A to Ebeling just as I would to any other tortfeasor, and I might be inclined to conclude that Ebeling indeed had such a duty. I concur with the majority, however, in concluding that the duty was not breached here because the uncontroverted evidence established that Ebeling fulfilled his limited on-call duties of “consultation.”

With due respect to my colleagues in the majority, I depart from the duty analysis (section I) contained in the majority opinion. Physicians should not be exempt for liabilities to third persons for negligent performance of an undertaking under § 324A by reason of a requirement that is wholly inapplicable to a pure § 324A analysis.