Spiess v. Johnson, 89 Or App 289, aff’g by an equally divided Court without opinion, 307 Or 242 (1988).
Husband brought an action against a psychiatrist for medical malpractice, breach of fiduciary duty, breach of contract, invasion of privacy and intentional infliction of severe emotional distress arising out of the psychiatrist’s alleged sexual relationship with plaintiff’s wife during the course of her treatment. Trial court granted defendant’s motions to dismiss all claims for failure to state ultimate facts sufficient to constitute a claim. The Court of Appeals reversed as to the claims for breach of contract and intentional infliction of emotional distress.
To state a claim for medical malpractice, the plaintiff must allege a physician-patient relationship. Husband cannot state a claim on his own behalf for alleged negligence against a physician for treating his spouse absent an independent physician-patient relationship. The court recognized that psychiatrist-patient relationship is fiducial. However, the plaintiff did not state a claim for breach of fiduciary duty because there was no physician-patient relationship.
Sullenger v. Setco Northwest, Inc., 74 Or App 345 (1985).
The duty of reasonable care owed by a physician to a patient arises out of the physician-patient relationship only, and does not exist in the absence of such a relationship. In rejecting the plaintiff's argument that a duty arises when a failure to act would foreseeably result in the injury of another, the court stated that "[t]he concept of ‘foreseeability’ is applicable to the measurement of the scope or extent of a duty of care, but it does not determine the existence of such a duty." Thus, the court held that a pediatrician has no duty to treat or render care to a sick child in the absence of a physician-patient relationship.
There is no physician-patient relationship where the treating doctor discusses a patient with another physician, where the second physician did not examine patient, review tests or chart notes, declined to manage the patient’s case and the treating physician did not seek an opinion.
Dowell v. Mossberg, 226 Or 173, on reh’g (1961).
A physician’s duty to exercise due care arises out of the physician-patient relationship.
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