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When Is Your Doctor Not Your Doctor?
Modern understanding of medical malpractice is based upon the presence of a physician-patient relationship. This specific relationship gives rise to a special duty on the part of the physician, the breach of which is one of the requirements for finding professional negligence. See, e.g., Wilson v. Athens-Limestone Hospital, 894 So.2d 630, 633 (Ala. 2004); Conley v. State, 141 S.W.3d 591, 597 (Tenn. 2004); Bessenyei v. Raiti, 266 F. Supp. 2d 408, 411 (D. Md. 2003). Although this consensual relationship is often discussed and thought of in terms of an express contract ' that the relationship is created when professional medical services are 'offered' voluntarily and those services are 'accepted' voluntarily by another ' most courts have held that the creation of the relationship need not satisfy the formalities of a contract. Stutes v. Samuelson, 180 S.W.3d 750, 753 (Tex. Ct. App. 2005). The creation of this relationship may be either express or implied. 'The implied contractual relationship may arise from facts and circumstances indicating there was a mutual intention to contract. The consent of the physician, whether express or implied, is absolutely necessary to the creation of the relationship.' Id.
'No Breach of Duty'
Given this understanding of the physician-patient relationship, it is unsurprising that many defendants in medical malpractice lawsuits assume the presence of the relationship ' and therefore a duty ' and begin defense of their case by asserting that there was no breach of this duty. In the past, when disputes over this duty arose, they came about in a fairly familiar medical malpractice context. For instance, a plaintiff patient would often assert that he and a defendant consulting or screening physician had entered into a consensual physician-patient relationship.
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