 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Regier v. Good Samaritan Hospital9/20/2002
ent of Adrian in one or more of the following particulars:
a) in failing to accept the transfer of Adrian to the Defendant GOOD SAMARITAN given Adrian's medical condition and the capacity and the specialized capabilities of Defendant GOOD SAMARITAN to treat that condition in violation of the applicable standard of care in the provisions of 42 U.S.C.ยง1395dd [(1994), Emergency Medical Treatment and Active Labor Act];
b) in failing to accept the transfer of Adrian to the Defendant GOOD SAMARITAN given Adrian's medical condition and the Defendant hospital's specialized capabilities and capacity to treat that condition in violation of hospital standards, bylaws, rules and regulations for the acceptance of transfer and care of patient's in Adrian's condition;
c) in failing to accept the transfer of Adrian to the Defendant GOOD SAMARITAN given Adrian's medical condition and said Hospital's specialized capabilities and capacity to treat that condition in violation of industry standards for the acceptance of transfer and care of patients in Adrian's condition.
In her brief before this court, Regier asserts that "the facts alleged in the Petition support both a general negligence claim and a medical malpractice claim against . . . Finkner." Brief for appellant at 12. Regier acknowledges that Finkner did not "treat" Adrian; however, Regier asserts that "Finkner, as the emergency room physician, contractually obligated to provide emergency room services . . . and owed a duty to Adrian." Brief for appellant at 13.
This court has previously recognized that generally, a physician's duty to exercise the required skill or standard of care must arise out of the physician-patient relationship and that the relationship can be said to arise when the physician undertakes treatment of the patient. Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125 (1991). See, also, Gallion v. Woytassek, 244 Neb. 15, 504 N.W.2d 76 (1993). We have also previously stated that the "existence of a physician-patient relationship is normally a question of fact" and "the party claiming the existence of the relationship must allege some facts to show that the relationship came into existence." Id. at 20, 504 N.W.2d at 80. In Flynn, we acknowledged that " ome courts . . . have held that a physician-patient relationship is not a necessary prerequisite for sustaining an action in medical malpractice, and have grounded liability upon the traditional duty analysis for negligence." Id. at 65, 469 N.W.2d at 128. We noted, however, that under the facts of the Flynn case, nothing was called to our attention to support the imposition of such a duty, and, therefore, it was not necessary to determine in Flynn the general question of whether liability can exist absent an underlying physician-patient relationship.
In the instant case, Regier alleges in her petition that Finkner was "negligent in his medical care and treatment of Adrian." The petition contains no allegations, however, that Finkner undertook to provide any medical care or treatment to Adrian. See id. To the contrary, the petition alleges that Finkner refused to accept the transfer and thus alleges facts that no physician-patient relationship based on treatment came into existence. Finally, although in her brief Regier claims that the allegations in the petition support a general negligence claim against Finkner, the petition fails to allege facts establishing that under existing Nebraska jurisprudence, Finkner owed a duty to Adrian. See id.
We acknowledge that there are allegations that Finkner's refusal to accept Adrian's transfer was in violation of Good Samaritan's bylaws, rules, and regulations, although the substance of
Page 1 2 3 4 Nebraska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|