Campbell v. Haber

—Order affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Rath, Jr., J.). We add only that, in our view, the issue whether an implied physician-patient relationship arose between defendant Michael W. Kelberman, M.D. and Steven Campbell (plaintiff) cannot be determined as a matter of law on this record (see, Rojas v McDonald, 267 AD2d 130; Bienz v Central Suffolk Hosp., 163 AD2d 269, 270). Plaintiff presented at the emergency room of defendant Paxton Hospital (Hospital), complaining of chest pains. Defendant Eugene Haber, M.D., the emergency room physician, examined plaintiff and ordered various tests. After obtaining test results that indicated to Haber that there might be heart muscle damage, Haber consulted Kelberman, a cardiologist, by telephone. According to Haber’s deposition testimony, Haber informed Kelberman of plaintiffs symptoms and test results. Kelberman opined that the test results were not consistent with a cardiac event. Haber informed plaintiff and plaintiffs wife that he had consulted with a cardiologist, who had opined that the symptoms were not caused by plaintiffs heart. Haber testified that he discharged plaintiff in reliance upon Kelberman’s opinion. An implied physician-patient relationship may arise when a physician gives advice to a patient, even if that advice is communicated through another health care professional (see, [947] Cogswell v Chapman, 249 AD2d 865). “Whether the physician’s giving of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship had arisen is ordinarily a question of fact for the jury” (Bienz v Central Suffolk Hosp., supra, at 270; see also, Cogswell v Chapman, supra, at 866). Here, as in Cogswell, the record contains evidence that Kelberman liad “more than an informal interest and involvement in plaintiffs condition” (Cogswell v Chapman, supra, at 867) and thus there is an issue of fact concerning Kelberman’s level of participation in plaintiffs treatment. Contrary to the conclusion of the dissent, there is a triable issue of fact whether Kelberman was “on call.” According to Haber’s deposition testimony, Haber telephoned Kelberman because Kelberman was the cardiologist “on call” that evening. Kelberman denied that he had an “on-call” relationship with the Hospital and the chairman of the Hospital’s emergency department testified at a deposition that the emergency room did not have a cardiologist “on call.” Although he was asked what an emergency room physician did when he or she felt it was necessary to consult with a cardiologist, the record does not contain his answer to that question. We therefore cannot resolve on this record the issue of Kelberman’s relationship to the emergency department. All concur except Kehoe, J., who dissents and votes to reverse the order insofar as appealed from in the following Memorandum: