Questions of Fact about Whether Duty Arose in Medical Malpractice Action

Tom v. Sundaresan:

In this medical malpractice action, Dr. Sundaresan moved for summary judgment on the basis that he lacked a duty of care to the plaintiff.  In particular, he claimed that one phone conversation with a doctor at another hospital in reference to the plaintiff did not give rise to a physician-patient relationship.  In opposition, the plaintiff claimed that since the two doctors discussed his transfer to defendant’s hospital, his condition, and agreed to perform surgery together on the plaintiff during the course of the phone call,  Dr. Sundaresean owed him a duty of care.

The First Department agreed, holding that the Supreme Court properly denied summary judgment to Dr. Sundaresan, since there was a triable issue of fact regarding whether or not a duty of care arose.  The Court found “a jury could reasonably infer that both doctors expressly contemplated treating plaintiff as part of the surgical team managing his care.”  However, it dismissed the cause of action against Dr. Sundaresan that alleged lack of informed consent, because it was the other doctor who obtained the plaintiff’s consent in this case.