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Robinson v. Health Midwest Development Group3/6/2001
2) a breach of that duty; and (3) an injury directly and proximately caused by the breach. Bond v. Cal. Comp. & Fire Co., 963 S.W.2d 692, 697 (Mo. App. 1998). As noted, supra, in her petition, the appellant alleged various negligent acts and omissions on the part of the respondent. On appeal, she argues that, based upon the allegations of her petition, and the undisputed facts and those facts still in dispute, a reasonable fact finder could find the existence of a duty owed. If she is correct in her assertion, then, of course, summary judgment for the respondent, based on the trial court's finding that the appellant could not establish at trial a duty owed, was improper. For the reasons discussed, infra, we find that on the summary judgment record before us, a reasonable fact finder could find that the respondent's medical staff owed a duty to the general public to warn its patient, Schmidt, not to drive while under the influence of the Compazine she had been prescribed. As such, the trial court erred in granting summary judgment to the respondent based on a finding that the appellant could not establish at trial a duty owed to support her negligence claim against the respondent.
"Duty is an obligation imposed by law [on a party] to conform to a standard of conduct toward another to protect others against unreasonable, foreseeable risks," Horner v. Spalitto, 1 S.W.3d 519, 522 (Mo. App. 1999) (citation omitted), which can be created by statute or common law. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 132 (Mo. App. 1993). A common law duty may be imposed under the circumstances of a given case based on public policy considerations. Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc./Special Products, Inc., 700 S.W.2d 426, 431-32 (Mo. banc 1985); Millard v. Corrado, 14 S.W.3d 42, 47 (Mo. App. 1999); Bradley v. Ray, 904 S.W.2d 302, 310 (Mo. App. 1995). In determining whether a duty of care should be imposed based upon public policy, several factors are to be considered:
(1) the social consensus that the interest is worth protecting, (2) the foreseeability of harm and the degree of certainty that the protected person suffered the injury , (3) the moral blame society attaches to the conduct, (4) the prevention of future harm, (5) the consideration of cost and ability to spread the risk of loss, and (6) the economic burden upon the actor and the community. Millard, 14 S.W.3d at 47 (citing Hoover's Dairy, Inc., 700 S.W.2d at 432).
In some cases, public policy is such that a common law duty arises simply because of the special relationship that exists between the parties. Hoover's Dairy, Inc., 700 S.W.2d at 432. As stated by the Missouri Supreme Court in Hoover's Dairy, Inc.: "When the existence of a duty to use due care rests on a relationship between persons, the law has simply placed the actor under obligation for the benefit of another person-the plaintiff-in the given circumstances." Id. (citations omitted). Such a relationship is the physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 418 (Mo. App. 1993). Thus, as the respondent argued in its motion for summary judgment, absent the appellant's being able to establish that a physician-patient relationship existed between her and the respondent's medical staff, the respondent, as a matter of law, did not owe her a duty of care on which to base a medical malpractice claim against it for damages.
Although, as discussed, supra, the appellant concedes that she could not establish a duty of care based on a physician-patient relationship necessary to support a medical malpractice claim, she contends that she could produce sufficient evidence at trial for the fact finder to find a general duty owed by the r
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