# McKinney v. Schlatter

> Ohio Court of Appeals · February 18, 1997 · 118 Ohio App. 3d 328

URL: https://www.frixlaw.com/law-library/cases/3713664

## Case

- **Full name:** McKINNEY Et Al., Appellants, v. SCHLATTER Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** February 18, 1997
- **Citations:** 118 Ohio App. 3d 328; 692 N.E.2d 1045
- **Precedential status:** Published
- **Opinion:** Dissent by Powell
- **Judges:** Walsh, Koehler, Powell
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Lownsbury v. VanBuren, 94 Ohio St. 3d 231 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3713664

## How later opinions describe it (automated extraction)

- finding a physician-patient relationship between an emergency room patient and an "on call" physician who had been consulted by the emergency room physician over the telephone and participated in the diagnosis and treatment of the patient
- finding physician-patient relationship between patient and on-call physician consulted over the telephone who participated in diagnosis and treatment of patient
- holding that the existence of a duty "depends upon whether there was a physician-patient relationship"

## Opinion text

Powell, Judge,
concurring in part and dissenting in part.
I agree with the majority’s analysis of the second and third assignments presented by this appeal. However, I believe that the trial court properly granted Dr. Solomito’s motion for a directed verdict. Therefore, I must respectfully dissent from the majority’s decision to sustain appellant’s first assignment of error and remand this case to the trial court.
The majority correctly reasons that the existence of a duty in a wrongful death medical malpractice case depends upon whether a physician-patient relationship existed between the decedent and the defendant-physician. I further agree that an implied physician-patient relationship may arise between an emergency room patient and an on call specialist where the on-call specialist is contractually bound to consult with the attending emergency room physician for the patient’s benefit. Nevertheless, I am not persuaded that a jury could conclude that such a relationship existed in this case because there is no evidence with respect to whether Dr. Solomito was contractually obligated to consult with Dr. Schlatter or other MRH physicians regarding McKinney’s condition.
The majority points to the testimony of appellant’s expert witness, Dr. Ralph Lach, as evidence of Solomito’s contractual obligations as the on-call cardiologist. Dr. Lach testified that a contractual relationship typically exists between a hospital and it staff physicians under which the physician is required to obey hospital bylaws, attend medical records meetings, treat charity patients, and be on an emergency room call list. However, neither Dr. Lach nor any of appellant’s other witnesses offered any evidence as to whether such an arrangement exists at MRH under which Dr. Solomito was contractually required to consult with Dr. Schlatter for McKinney’s benefit.
Absent such evidence, there is simply no way the jury could have reasonably concluded that an implied physician-patient relationship existed between Dr. Solomito and McKinney. The jury would be left to speculation. Therefore, I must dissent from the majority’s decision to sustain appellant’s first assignment of error because I believe that the trial court properly granted Dr. Solomito’s motion for a directed verdict under these circumstances.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3713664. Public record. Not legal advice.