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.