TANYA BLAZO V MCLAREN REGIONAL MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
TODD BLAZO, a Minor, by his Next Friend,
EVELYN BLAZO,
UNPUBLISHED
May 28, 2002
Plaintiff-Appellant,
v
No. 227456, 227839
Genesee Circuit Court
LC No. 97-055504-NH
McLAREN REGIONAL MEDICAL CENTER,
FRANK W. COOK, M.D., DOUGLAS D.
EITZMAN, M.D., JON A. SANTIAGO, M.D., and
HURLEY MEDICAL CENTER,
Defendants,
and
RICHARD J. McMURRAY, M.D.,
Defendant-Appellee.
TANYA BLAZO, a Minor, by her Next Friend,
EVELYN BLAZO,
Plaintiff-Appellant,
v
No. 227612, 228102
Genesee Circuit Court
LC No. 97-055503-NH
McLAREN REGIONAL MEDICAL CENTER,
FRANK W. COOK, M.D., DOUGLAS D.
EITZMAN, M.D., JON A. SANTIAGO, M.D., and
HURLEY MEDICAL CENTER,
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Defendants,
and
RICHARD J. McMURRAY, M.D.,
Defendant-Appellee.
Before: Smolenski, P.J., and Neff and White, JJ.
PER CURIAM.
In Docket Nos. 227456 and 227612, plaintiff appeals by leave granted the circuit court’s
order granting summary disposition in favor of defendant Richard J. McMurray, M.D., in this
medical malpractice action. We consolidated these appeals with Docket Nos. 227839 and
228102, in which plaintiff appeals the circuit court’s order awarding actual costs to McMurray
totaling $20,297.90, including attorney fees. We reverse.
Plaintiff Evelyn Blazo, who brought suit on behalf of her twins Todd and Tanya Blazo,
first argues that the circuit court erred in concluding that there was no genuine issue of material
fact whether there was a physician-patient relationship between plaintiff and McMurray. We
agree.
Our review of decisions on motions for summary disposition is de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10)
tests whether there is factual support for a claim and determines whether any documentary
evidence establishes a genuine issue of material fact to warrant a trial. Id., citing Singerman v
Municipal Bureau, Inc, 455 Mich 135, 138; 565 NW2d 383 (1997). The existence of a legal
duty is a question of law. Oja v Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998). “A
physician-patient relationship is a legal prerequisite to a medical malpractice cause of action.”
Id.
A physician-patient relationship is contractual and requires the consent of both the doctor
and the patient. The consent of the patient is generally implied. Relying on Oja, supra, and Hill
v Kokosky, 186 Mich App 300; 463 NW2d 265 (1990), defendant argues that plaintiff produced
insufficient evidence to create a material issue of fact. We find Oja and Hill distinguishable.
Hill presented the question “whether a doctor who is contacted by a patient’s treating
physician to discuss treatment alternatives owes a duty to the patient whose case is discussed.”
In answering that question, this Court looked to cases in other jurisdictions, stating:
Whether a physician-patient relationship arises from a treating physician’s
solicitation of a colleague’s informal opinion on patient treatment is an issue of
first impression in this state. Other jurisdictions have considered the question,
however. In the absence of a referral, a formal consultation, or some other
contractual relationship, these jurisdictions have concluded that no physician-2-
patient relationship arises in this context. [186 Mich App at 303.]
Hill did, indeed, involve a treating physician’s informal solicitation of the defendants’ opinions
regarding a patient he was treating. The treating physician related the history, and solicited the
opinions over the telephone, there was no referral, no examination, and no other connection
between the patient and defendant doctors, other than the informal solicitation of their opinions.
In the instant case, the facts presented, viewed in a light most favorable to plaintiff, are
that plaintiff, who was pregnant with twins (Todd and Tanya Blazo), was at defendant McLaren
hospital for carpal tunnel surgery when she developed contractions. The hospital had no
obstetrician/gynecologist on call, and so the nurse on duty called plaintiff’s regular obstetrician’s
office. That doctor was not available, so the nurse was referred to another doctor in the office,
defendant McMurray, who was on call for plaintiff’s regular obstetrician. The nurse related
plaintiff’s condition to Dr. McMurray, and according to the nurse, Dr. McMurray told her that
plaintiff had three options: transfer by ambulance to Hurley Hospital, admission at McClaren
overnight, or discharge until her pregnancy progressed further. It is claimed that this advice
violated the standard of care.
Thus, unlike Hill, the instant case does not involve a treating physician’s solicitation of
an informal opinion from another physician. Rather, viewing the facts in a light most favorable
to plaintiff, a nurse called the patient’s treating physician seeking directions for care, and was
directed to the doctor who had assumed the responsibility of covering for the treating physician.
Defendant asserts that under Oja, a physican–patient relationship cannot arise merely
from a doctor’s being on call. However, Oja is also distinguishable. In Oja, the doctor on call
repeatedly told the emergency room resident who had called him that he was not feeling well and
would not go to the hospital, and that the resident should contact another physician to assist her.
Oja, supra at 186. Oja determined that “a physician’s on-call status alone is [not] enough to
support an implied consent to a physician-patient relationship.” Id. at 191. The Oja Court
identified a spectrum of involvement. “Merely listening to another physician’s description of a
patient’s problem and offering a professional opinion regarding the proper course of treatment”
is not enough under Hill. On the other hand, “a doctor who is on call and who, on the phone or
in person, receives a description of a patient’s condition and then essentially directs the course of
that patient’s treatment, has consented to a physician-patient relationship.” Id. The Court stated
that the difficulty arises in determining where, between these two extremes, a physician-client
relationship arises. Id.
Here, there was evidence that Dr. McMurray responded to the nurse’s description of
plaintiff’s condition and solicitation of medical advice regarding the appropriate course of
treatment for plaintiff at that time by identifying three options. Thus, there was evidence that Dr.
McMurray did something, such as participate in plaintiff’s diagnosis and treatment - - the
determination that there were three medically sound options, including that plaintiff could safely
go home until her pregnancy proceeded further - -that supports the implication that he consented
to the physician-patient relationship. Id. This, coupled with evidence that Dr. McMurray gave
advice regarding the appropriate options at a time when he had assumed the responsibility of
covering for plaintiff’s treating obstetrician, created a question of fact regarding the existence of
a physician-patient relationship.
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Because summary disposition was granted in error, we vacate the award of actual costs
under MCR 2.403.
Reversed and remand for further proceedings. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Janet T. Neff
/s/ Helene N. White
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