901 S.W.2d 420
-Pope came to the emergency room of Central Texas Medical Center complaining of back pain and fever.
-Pope had recently undergone back surgery and epidural injections, and his white blood cell count was extremely high.
-The emergency room physician, Dr. Suarez, examined Pope and initially diagnosed the patient as having lower back pain and acute psychosis.
-Pope's wife asked to transfer her husband to Round Rock Hospital because the couple lived in Austin and the physician who had previously treated Pope practiced at the Round Rock Hospital.
-Meanwhile, Suarez telephoned Dr. Holland St. John at home.
-St. John was a board-certified internist and on call at the hospital on the evening in question.
-Suarez recounted to St. John that he had received a patient for evaluation of fever and back pain who had a history of recent back surgery.
-Because St. John's area of specialization was not neurology or neurosurgery, and the Center was not able to handle cases involving these specialties, St. John recommended that Pope be referred to a hospital with the requisite neurosurgeon or to the physician who had performed the surgery.
-Suarez agreed, and indicated that he would arrange the transfer.
-Suarez called Pope's doctor, but the Round Rock Hospital's emergency room refused to accept the transfer.
-Not wishing to hospitalize her husband in San Marcos, Mrs. Pope took her husband home against the advice of the staff at the Center. The following day, an ambulance transported Pope to an Austin hospital. There a lumbar puncture revealed that he was suffering from meningitis.
-Pope developed several permanent disabilities from the disease.
-The Popes sued the Center and the Round Rock Hospital, two Round Rock physicians, Suarez, and St. John. The petition alleged generally that the defendants failed to exercise professional care and were negligent.
The trial court granted summary judgment in favor of petitioner and held that petitioner and respondent had not formed a physician-patient relationship such that petitioner owed a duty of care
-Does a doctor have a duty of care when there is no doctor-patient relationship?
"whether an on-call physician, consulted by an emergency room physician over the telephone, formed a physician-patient relationship by expressing his opinion that the patient be transferred to another facility, and if not, whether the physician owed duties outside that relationship.
No, without a doctor-patient relationship, the doctor does NOT have a duty of care.
• Physicians are not obligated to practice their profession or render services to everyone who asks. It is only with a physician’s consent, whether express or implied, that the doctor-patient relationship comes into being.
• The duty to treat the patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice.
• The court concludes that a physician may decline treatment and thereby decline to create a physician-patient relationship, even on the basis of an erroneous conclusion that the patient’s condition is beyond his or her ability to treat. Creation of the physician-patient relationship does not require the formalities of a contract. The fact that a physician does not deal directly with a patient does not necessarily preclude the existence of a physician-patient relationship.
• The mere fact that a doctor is “on call” does not in itself impose any duty
• The court reversed the judgment of the court of appeals and rendered judgment that respondent patient take nothing from petitioner physician. A physician-patient relationship was not established between petitioner, as a consulting, on-call physician and respondent.