Thе sole question presented for review is whether the trial court erred in granting summary judgment in favor of defendant Dr. Cline. The Court of Appeals held that all of the evidence at the hearing on the motion for summary judgment tendеd to show that Dr. Cline never saw or treated plaintiff’s intestate at all. The court stated: “We find no evidencе in rebuttal.”
Easter v. Hospital,
It is well settled that “Rule 56, Rules of Civil Procedure, authorizes the rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Vassey v. Burch,
issues of negligence are ordinarily not susceptible of summаry adjudication either for or against the claimant “but should be resolved by trial in the ordinary manner.” 6 Pt. 2 Moore’s Fеderal Practice, § 56.17 [42] at 946 (2d ed. 1980). Hence it is only in exceptional negligence cases that summary judgment is аppropriate because the . . . applicable standard of care must be applied, and ordinarily the jury should apply it under appropriate instructions from the court.
Id.
at 73,
In the instant case, as the Cоurt of Appeals noted, defendant Cline’s evidence tended to show that he never treated or saw plaintiff’s intestate and thus the physician-patient relationship never arose. It is well settled that the relationship of physician to patient must be established as a prerequisite to an actionable
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claim for medical malpractice.
Childers v. Frye,
We recognize that Dr. Cline’s evidence included the affidavit of Dr. Meade, who made the hospital records testified to by Mr. Frock, averring that the hospital records were in error due to his own mistaken assumptions regarding the night in question. Nevertheless, Mr. Frock’s testimony directly contradicts the evidence presented by Dr. Cline that he never saw plaintiff’s intestate. Such a contradiction raises an issue of material fact to be decided by a jury with the credibility of the witnesses likewisе to be determined by a jury. We further note that there is evidence that Dr. Cline also took charge of plaintiff’s treatment at least insofar as assigning him to the care of Dr. Lohr initially, and later admitting him to the care of defendant Dr. Meade.
Should a jury determine that the physician-patient relationship existed, there are аdditional issues of fact concerning the question of Dr. Cline’s negligence, if any, in treating or failing to treat plaintiff’s intestate. There is evidence tending to show that Dr. Cline was the physician in charge of the emergency rоom on 16 November 1976, and that upon Dr. Lohr’s offer to assist in treating the burn victims, Dr. Cline pointed in the direction of plаintiff’s intestate and said, “Why don’t you see that one over there?” There is evidence in the record that Dr. Lohr wаs an obstetrician-gynecologist and had never treated major burns. Dr. Lohr stated in his deposition that the
type of training I had at the School of Aviation and Medicine in burn treatment was the general flight surgeon program. The curriculum included taking care of acutely burned people at the scene of crashes and in triаge areas. We did not actually do treatment. It was a lecture course .... It was not a specific сourse in itself, but it was covered in courses of air-sea rescue, general crash investigation, this sort of thing. *307 There was not a specific course in burn care. I did not actually treat the burn patients myself at that time, it was a training course.
Dr. Lohr also testified that, while he had worked in the emergency room between 1970 and 1974, he had not had an “occasion to treat any major burn patients.”
We are of the opinion that the evidence raises issues of material fact as to the negligence of Dr. Cline in assigning or permitting an obstetrician-gynecologist, arguably untrained in the area of major burns, to treat an emergency burn patient such as рlaintiff’s intestate. There is certainly an issue of fact as to whether, assuming the existence of the physician-patient relationship, defendant Cline exercised “that degree of knowledge and skill ordinarily possessed by others of his profession,”
Nash v. Royster,
The decision оf the Court of Appeals affirming entry of summary judgment in favor of defendant Dr. Cline is reversed and the case is remanded to that court for further remand to the Davidson Superior Court for proceedings in accordance with this opinion.
Reversed and remanded.