Tort Law: When a physician has not personally seen a patient, whether an implied physician-patient relationship is created depends on whether the physician knows or reasonably should know that he or she is diagnosing a patient’s condition or is treating the patient.

Defendant Doctor was the on-call neurosurgeon for Legacy Health System when a resident doctor in the emergency room (ER) called him for advice regarding Mead (Patient). Later, Patient suffered permanent nerve damage because she was not operated on immediately. Patient attributed the delay to Doctor and sued him for malpractice. In order to be liable for malpractice, a physician-patient relationship must exist. The trial court and the Court of Appeals came to different conclusions regarding whether a physician-patient relationship arose between Doctor and Patient when Doctor gave the ER resident advice over the phone. A physician-patient relationship requires express or implied consent by both the physician and the patient. The Supreme Court stated that when a physician has not personally seen a patient, the question is whether the physician knows or reasonably should know that he or she is diagnosing a patient’s condition or treating the patient in order to create an implied physician-patient relationship. The Court found that there was sufficient evidence to support the jury's verdict that no physician-patient relationship existed between Doctor and Patient. However, the Court held that the trial court erred in its jury instructions by requiring a higher proof of mental state and this error was prejudicial. Reversed and remanded for a new trial.