# Lownsbury v. VanBuren

> Ohio Supreme Court · February 20, 2002 · 94 Ohio St. 3d 231

URL: https://www.frixlaw.com/law-library/cases/6783708

## Case

- **Full name:** Lownsbury v. VanBuren Stover
- **Court:** Ohio Supreme Court
- **Decided:** February 20, 2002
- **Citations:** 94 Ohio St. 3d 231; 762 N.E.2d 354
- **Precedential status:** Published
- **Opinion:** Concurrence by Cook
- **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney, Syllabus
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6783708

## How later opinions describe it (automated extraction)

- holding that it was a question of fact for the jury whether an on-call cardiologist who had discussed a patient’s symptoms and test results with an emergency room physician entered into a physicián-patient relationship with the person seeking treatment
- stating, “The basic underlying concept in these cases is that a physician-patient relationship, and thus a duty of care, may arise from whatever circumstances evince the physician’s consent to act for the patient’s medical benefit.”
- finding that a physician may consent to a physician-patient relationship by taking certain actions, “such as examining, diagnosing, treating, or prescribing treatment for the patient”
- noting that a physician may consent to a physician-patient relationship and thereby assume a duty by taking “certain actions that indicate knowing consent, such as examining, diagnosing, treating, or prescribing treatment for the patient.”

## Opinion text

Cook, J.,
concurring in syllabus and judgment only. The existence of a legal duty in ordinary negligence cases is generally a question of law for the court. Mussivand v. David (1989), 45 Ohio St.3d 314, 318 , 544 N.E.2d 265, 270 . Similarly, the question of whether there exists a physician-patient relationship— upon which the legal duty in medical malpractice cases is predicated — is a legal issue that a court must decide before the factfinder decides what the appropriate standard of care was in a given case. St. John v. Pope (Tex.1995), 901 S.W.2d 420, 424 . It does not necessarily follow, however, that the court may always decide at the summary-judgment stage the existence or nonexistence of a *244 physician-patient relationship as a matter of law. There are some circumstances in which “the existence of a duty may depend on preliminary questions that must be determined by a fact finder.” Diggs v. Arizona Cardiologists, Ltd. (Ariz.App. 2000), 198 Ariz. 198, 200 , 8 P.3d 386, 388 . Such is the case in the medical-malpractice context, where the existence of a physician-patient relationship may depend on the facts of the particular case and essentially become a question for the trier of fact. See Irvin v. Smith (Kan.2001), 31 P.3d 934, 940-941 ; Gallion v. Woytassek (1993), 244 Neb. 15, 20 , 504 N.W.2d 76, 80 ; Eby v. Newcombe (1989), 116 Idaho 838 , 840, 780 P.2d 589 , 591; Lyons v. Grether (1977), 218 Va. 630, 633 , 239 S.E.2d 103, 105 .
Sandra J. Rosenthal; Muth & Shapiro, P.C., and Andrew S. Muth; Beam & Associates and Jack Beam; Alpert, DAnniballe & Visnic and Robert D’Anniballe, Jr., for appellants.
Reminger & Reminger Co., L.P.A, Thomas Mannion and James M. Kelley III, for appellee Thomas D. Stover, M.D.
Zavarello & Davis Co., L.P.A., A. William Zavarello and Rhonda Gail Davis, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
In this case, the consent form signed by Cathy Lownsbury, the contract between East Market and Akron City Hospital, and the contract between Dr. Stover and East Market raise a genuine issue of material fact concerning the existence of a physician-patient relationship. Accordingly, I concur in the court’s syllabus and judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6783708. Public record. Not legal advice.