Lownsbury v. VanBuren

762 N.E.2d 354, 94 Ohio St. 3d 231
Ohio Supreme Court·Decided February 20, 2002·No. No. 00-1655·Published·Cited by 27 cases

Opinions

Alice Robie Resnick, J.

This is an appeal from a summary judgment in favor of defendant-appellee Thomas Stover, M.D., in a medical malpractice action. The action was brought by plaintiffs-appellants Mary and Gerald Fabich, in their own right and as next friends of their adopted daughter, plaintiff-appellant Rebecca Fabich (formerly Rebecca Lownsbury), who was born severely brain damaged on January 10,1995.

In their initial complaint, filed January 19, 1996, appellants asserted various claims of medical negligence against numerous defendants, all of which arise out of the prenatal care and treatment provided to Rebecca’s biological mother, Cathy Lownsbury, at Akron City Hospital from January 6, 1995 through January 10, 1995. After extensive discovery, appellants settled with and/or dismissed all but two of the original defendants.

On September 9, 1997, appellants filed an amended complaint in which they reasserted their original claims against these two defendants, added new claims, and named Dr. Stover as an additional defendant. As pertinent here, appellants alleged that on January 6, 1995, Lownsbury was given a nonstress test and an amniotic fluid index test at Akron City Hospital’s perinatal testing center. Based on the results of these tests, George VanBuren, M.D., a defendant below, ordered that Lownsbury be taken to the hospital’s labor and delivery unit for an induction of labor. However, rather than inducing labor as ordered, the obstetrics residents administered a contraction stress test, after which they discharged Lownsbury from the hospital the same day. The contraction stress test allegedly ran for two hours and twenty minutes and revealed repetitive late decelerations, suggesting fetal distress, but only an eighteen-minute portion of the fetal monitor tracing was reviewed, which showed no decelerations.

Appellants claimed, among other things, that Dr. Stover was negligent in failing to supervise the obstetrics residents who actually cared for Lownsbury on [233]*233January 6, 1995, and that such failure was a proximate cause of Rebecca being born permanently brain damaged on January 10, 1995.

Dr. Stover moved for summary judgment on the sole ground that he owed no legal duty of supervision to Lownsbury or Rebecca because he and Lownsbury never had a physician-patient relationship. In his motion, Dr. Stover maintained that a physician-patient relationship cannot be found to exist between an on-call physician and a hospital patient unless it appears that the physician was either in direct contact with the patient or actively involved in the patient’s care.

In response, appellants argued that regardless of whether Dr. Stover had any contact with Lownsbury or the residents who actually cared for her, he nevertheless assumed the duty to provide Lownsbury with supervisory care by contracting to serve as the on-premises attending and supervising obstetrician at Akron City Hospital on January 6,1995.

Appellants’ supporting evidence tended to show that Dr. Stover was employed by East Market Street Obstetrical-Gynecological Co., Inc. (“East Market”) “to provide obstetrical and gynecological services to patients at Akron City Hospital in accordance with the working schedule promulgated by the Board of Directors of East Market from time to time.” East Market had entered into an agreement with Akron City Hospital (“EMS-ACH contract”) to “[s]chedule sufficient PHYSICIANS to provide SERVICES on HOSPITAL premises twenty-four (24) hours per day, seven (7) days per week, consistent with accreditation requirements of the HOSPITAL Obstetrical and Gynecological Residency Program.”

The EMS-ACH contract also required East Market to “[pjrovide sufficient PHYSICIANS in order to perform SERVICES required by this Agreement so as to insure high quality professional medical care will be provided to HOSPITAL’S obstetrical and gynecological patients,” to provide physicians “to serve on such committees and in such similar positions as are necessary * * * to collaborate with the Medical Staff,” and to “[cjomply with all rules, regulations and bylaws of HOSPITAL and HOSPITAL’S professional staff.”

The contract provided further that East Market physicians “must maintain membership on HOSPITAL’S Medical Staff and clinical privileges within HOSPITAL” and “shall be subject to HOSPITAL’S Articles of Incorporation, Code of Regulations, Professional Medical Staff Bylaws and Professional Rules and Regulations.” In addition, both East Market and its physicians were obligated to “perform SERVICES to patients of HOSPITAL in accordance with currently approved medical standards, methods and practices.”.

Sometime between January 6 and January 10, 1995, Lownsbury signed a consent form setting forth conditions of admission to Akron City Hospital. This document explains that “[t]he Hospital is a teaching institution * * * for undergraduate, graduate and post-graduate education,” and that “[s]tudents may [234]*234participate in the care of the patient.” It also confirms that these students are present for educational and instructional purposes “under appropriate supervision,” that “[t]he patient will be under the professional care of a Medical Doctor called the attending physician,” and that “[t]he patient * * * consents to hospital services as ordered by the attending physician * * * or * * * rendered under the general and specific instructions of the physician.”

Appellants also presented affidavit and deposition testimony of two medical experts who stated that Dr. Stover had a responsibility as the supervising physician on January 6, 1995, to familiarize himself with Lownsbury’s clinical condition and particularly to review the contraction stress test by the end of his scheduled working day and formulate a plan of management. They opined that Dr. Stover should have maintained an operational presence in the labor and delivery unit, rather than sitting in the hospital’s staff room “wasting time” until his help was requested (as Dr. Stover claimed he could do), and that had Rebecca been delivered even a day earlier, she probably would not have suffered permanent neurological injury.

The trial court granted Dr. Stover’s motion for summary judgment without opinion on July 22, 1998. In a subsequent order dated October 9, 1998, the trial court certified its judgment as final and appealable pursuant to Civ.R. 54(B) upon an express determination that there is no just reason for delay.

The trial court’s judgment was affirmed by a majority of the court of appeals, which held, “In order to establish a physician-patient relationship there must be some contact between the doctor and the patient.” The majority recognized that such contact may be “indirect where the doctor takes an active part in diagnosing or treating the patient even without the patient’s knowledge,” but was unwilling to dispense with the requirement of contact in situations where the physician expressly or impliedly contracts with the hospital to serve in an attending or supervisory capacity. Thus, while acknowledging that certain factual disputes remain as to Dr. Stover’s contractual status and duties on January 6, 1995, the majority found that “[tjhese issues are not material to this case * * * because what is not in dispute is that Dr. Stover never saw, evaluated, [or] treated, [or was] consulted [about Lownsbury], or knew that Lownsbury was in the hospital.”

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Lownsbury v. VanBuren, 762 N.E.2d 354, 94 Ohio St. 3d 231 (Ohio 2002).

762 N.E.2d 354 (Lownsbury v. VanBuren) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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