asked to have the patient in his office it was on the following monday and doing that it was our position he participated in a relationship which arose the duty what the trucker perceived as they have since that relationship this ruling was reversed on appeal in an appeal the court found that a question of fact existed concerning whether there was a doctor patient relationship or a special relationship between the patient in the specialist specifically where the following facts existed or the specialist knew the services they were providing for the benefit it actual or constructive knowledge that the medical opinions that they were providing and the character providing were crucial to the function and  august knew that his services were being provided for the benefit of the patients he was being consulted specifically because he was yanked off his issues and he was contractually obligated to provide the services and he knew they were being the hospital to provide precisely this type of fear to precisely this class of this population of patients patients in the emergency patients that this is not this is not a casual relationship that's going on here to the point you have two other people in question here and i think this is it's a matter of looking at all of the facts and deciding whether this relationship rises to the level where  gives birth to a duty of reasonable here is really almost here is not as to whether it's reasonable we're here as to whether there is a duty to do it right i mean the all of these other issues may or may not be dealt with later on but that's really the single issue here isn't it was yes it was a dismissal of the franco based on no relationship therefore no yes process between doctors you know i've got a case here of involves x y z and you know i've been really a medical literature or whatever what your opinion about this what would you do if you were me it seems to me that and certainty that what i'm saying might be an appropriate treatment or what i would do in treatment that if i'm know that that will actually be done to that person rm that decision is the issue i'd like to start with with the court today and that is the problem of time the claims that mrs mackey brought against dr de frank over time and that alone that of itself is a that at the time the respondent discovery status last as a battle that's that january twenty sixth date the statute of limitations had not yet and it had not yet run so if the plane wanting to bring dr de franco in as a defendant she actually had until may fourteenth of twenty twelve she had several months later to do that she could again there's nothing in the record that suggests that would have been an issue it wouldn't tha now moving a little bit to justice will your questions about special relationship and whether there existed a physician patient relationship in this case the court was asking what is the rule there doesn't seem to be a bright line again a little bit of structure  think is useful here as the court knows a physician patient relationship can be formed in two different ways there him be the direct formation of a physician patient relationship or what we're dealing with here is whether there was a special relationship that was positions who were brought in to consult were cardiological intervention that they were experts in angiograms they were experts in testing and in the performance of the procedure itself the treating her the ologist could not do any of those procedures could not read though those tests could not perform those services for the patient that separate independent special expertise because that's not what we have in this case in this capable of identifying their conditions he was capable of understanding the test results that came back to a point he suggested for example he could do a complete read of a c t scan because he wasn't a radiologist but he could review scan and understand were still in school so he was capable of doing all of those things and perhaps most importantly dr sirocco the emergency room physicians stated he was the one who could make decisions about prescriptions for patients ultimately if you felt the patient required antibiotics he was the final arbiter of making that determination if you disagreed with the specialist it was doctors who would make the decision about whether or not to prescribe antibiotics he would not simply rely on the recommendation of the consul for that permission so this is not the case that pulls into that needed expertise category that's physician who is contacted say by a residence and the on position is directing the resident who will do x y and z supervised or for example if you're looking at a case like the lenihan case that's the case that involved the cancer study and the physician who had created a chemotherapy protocol that physician was determined to have a physician patient do to a patient because that physician was supervising the patient that only goes really e r doctor who had come around because the our doctor had the experience he wasn't a resident you have the experience to make those decisions he testified that he could make all decisions about her care about this is mackie's care he was capable of doing those things he consulted with a urologist absolutely that's true but that console did not result in to the hospital to give another opinion about the condition of the patient you're ology is not a specialty based solely on film and test results there is a face to face now list as that happens with a gave him a relatively short description of her condition saying she didn't have a few blurred she was stable she had an arm a white blood cell count he gave the very same to explanation of what her condition was that time did not ask for a independent recollection of the conversation that he had with dr sort of same for doctors rupa there is no independent recollection of the conversation so they're only working from those notes and that is the only mention of sepsis in the within the category of his privileges to diagnose to them to read that film i mean you know to say that he has the experience he knows he's looking and is finding the reason that he but with the emergency room he is on call to be available in the event that a urologist is needed is needed to come in is needed to consult with a patient for the same reason the surgeon would be on call and internist would be on contractual obligation into the hospital and provide that counsel certainly those physicians can also be contacted less formally which is what happened here but that does not automatically create a legal duty between the consulting physician and the patient and that's what we see in the case law that's what happened in weiss for example where the emergency room physician contacted the hall psychiatry here's what the patient looks like here are the numbers to the extent that they were shared it's not clear that they were but she doesn't have the fever or she's comfortable pains under control that's the description that's given and emergency evaluate this patient give us your evaluation of whether she made it give us your evaluation dition that's not here and not what separates this case from the cases danger here is the slippery slope problem is the problem of public policy if the court were to determine as plaintiff is suggesting it's simply by agreeing to be on call a physician question no issue of fact automatically there's a physician patient relationship there that's not what the wausau is because that wasn't found in cases such as what he says and that can't be the policy of this state because that would create liability in any consulting position so with that in mind the task that the other courts have laid out it depends on whether the physician has a relationship with the patient i agree that it is important that a physician who has a relationship with the patient owes the patient a duty of care but there has to be a relationship first and there is not simply a relationship if he consulting if the consulting physician is required meaning if the physician who requests the consul is saying to the consulting physician i need you to come in and consult with his patient then that consulting physician has an obligation to go could be upgraded from a face to face can be given over the phone i mean i'm not a doctor but i think all of the bases that were mitchell examined of this patient seem to be a probably a protocol written somewhere in  progressed about how she's feeling at any particular time about the location of the pain you're observing her demeanor you're observing her coloring here observing and whether there are any other related muscle we have blind doctors to we do know who are given the information about way for example to your point it's a physician consulting say over the internet which is something that consulting physicians can do now that's not an in face hospitals and we're not suggesting that that that is the only way a film or it's not as complete as consulting over the internet you don't have that opportunity dr de franco doesn't have that opportunity here because it's not requested and what the court would be suggesting is that automatically because of position a consulting physician receives that all he does have now an obligation any time he is call for counsel to come in and check the patient and see how the patient i depending on the specialist depending on the specialists area of expertise might not automatically there is still a requirement that a physician check the patient see the patient observe the patient may that evaluation it would be a in i think just suggesting that in a court room a judge has the opportunity to evaluate a witness to determine whether the witnesses telling the truth to identify the credibility of the witness and that doesn't exist on the record on the co idea of required expertise is it isn't it or should be considered as an element of an evaluation of whether a special relationship exists so for example if it's a radiologist who would simply be reviewing automatically going to be evaluating the patient in person that's not required for that particular area of specialty but a consulting emergency room physician doesn't have the expertise to review was law and evaluate exactly what the condition of that patient is as a as a pathologist that's the distinction here you're dealing more with say an internist to take it a little bit away from iraq just to make it a little more broad an internist has to go through a similar process as an emergency room physician and would need to be at site and would need to evaluate the patient and would need to perform that analysis before making a determination about the patient's condition the emergency room physician can conduct many of those the emergency room physician concludes in his expertise that he needs someone who is more expert to come in and perform that evaluation as well that is the obligation of the on  then the way this concept of special relationship is described in the case law and we all agree there can be indeed based on a special relationship absolutely special relationship is essentially created through another physician so that's exactly right it very much depends discovery and i would refer the course to the case of our courses resurrection which the court held that the six month period or a nine month period however you look at it for converting a responde a defendant in this case within the statute of limitations as i understand it the statute requires the plaintiff to file her lawsuit within two years of the date which she is aware or should reasonably position and it was more than two years after this event and within i think it was within three weeks we had an additional review currently it is then at a minimum there's a question of fact as to whether there was a duty on this plaintiff to file an action based in part on a failure to provide advice where the only records