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Church v. Perales8/22/2000
ng Ms. Church's deposition, whether the deposition was part of the record or not. However, Dr. Wolf's recitation of the portions of Ms. Church's deposition on which he relied is not evidence that the conversations occurred as Ms. Church described them. The only competent evidence of these conversations would be the testimony of Ms. Church, Ms. Spafford, Dr. Perales, and anyone else present during the March 2, 1995 pre-surgical consultation or any document memorializing these conversations that would be admissible as an exception to the hearsay rule.
Based on the undisputed evidence in the record before us, we have concluded that the only conclusion that a reasonable person could reach is that Dr. Perales's explanation of the nature of the procedures she intended to perform as well as the risks and benefits of these procedures complied with the standard of care applicable to Dr. Perales. Accordingly, the trial court properly granted the summary judgment dismissing Ms. Church's lack of informed consent claim.
B. The Delay in Post-Operative Diagnosis and Treatment Claim
Ms. Church does not claim that Dr. Perales performed any of the March 22, 1995 surgical procedures negligently or that the perforation of her small intestine at its antimesenteric border was caused by Dr. Perales's negligence. However, she asserts that Dr. Perales was negligent in failing to diagnose and treat the effects of the perforation of her small intestine during the course of her post- operative recovery. This contention is the heart of Ms. Church's medical malpractice claim against Dr. Perales. For her part, Dr. Perales gives two responses to this claim. First, she asserts that she owed no duty to Ms. Church when this negligence occurred. Second, she asserts that Ms. Church's expert opinion on causation is "purely speculative." We disagree with both of Dr. Perales's arguments and find that the trial court should not have summarily dismissed Ms. Church's malpractice claim against Dr. Perales for negligently failing to diagnose and treat her perforated intestine.
1. Dr. Perales's Duty to Ms. Church
The existence of a duty owed by the defendant to the plaintiff is a necessary ingredient of every negligence claim, including medical malpractice claims. Accordingly, we turn first to Dr. Perales's assertion that she owed no duty to Ms. Church after March 29, 1995, because she had left Nashville to attend a medical seminar and had turned over Ms. Church's care to Dr. Ross. If Dr. Perales is correct, she is entitled to a dismissal of Ms. Church's malpractice claim as a matter of law. Determining whether Dr. Perales owed a duty to Ms. Church is a question of law. See Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000); Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998); Jackson v. Bradley, 987 S.W.2d 852, 854 (Tenn. Ct. App. 1998).
The existence of a physician's duty arises out of the professional relationship between the physician and his or her patient. The relationship is generally characterized as a contractual one in which the patient knowingly and voluntarily seeks the professional assistance of the physician, and the physician knowingly agrees to treat the patient. See Jennings v. Case, 10 S.W.3d 625, 628 (Tenn. Ct. App. 1999); Osborne v. Frazor, 58 Tenn. App. 15, 20, 425 S.W.2d 768, 771 (1968). The physician also agrees to use his or her best judgment and skill in providing treatment. See Truan v. Smith, 578 S.W.2d 73, 75-76 (Tenn. 1979); Redwood v. Raskind, 49 Tenn. App. 69, 75, 350 S.W.2d 414, 416-17 (1961).
Once a physician accepts a patient, he or she has a duty to continue providing treatment as long as it is medically necessary. See Hongsathavi
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