## Facts

- Daisy Childs, approximately seven months pregnant, went to the emergency room of Greenville Hospital Authority around 2:00 a.m. reporting bleeding and labor pains.
- A nurse examined Daisy and telephoned Dr. C. B. Weis, a physician practicing in Greenville, Texas.
- According to Daisy, the nurse relayed that the doctor said Daisy would have to go to her doctor in Dallas; Daisy stated she could not make it, and the nurse replied that she would.
- Daisy left the hospital and, about an hour later, delivered her baby in a car en route to other medical facilities; the infant lived approximately 12 hours.
- Dr. Weis stated by affidavit that he never saw, spoke to, examined, or treated Daisy or J. C. Childs, and that he never agreed to do so.
- Dr. Weis stated that during the nurse’s telephone call he suggested the nurse advise Daisy to contact her own physician in Dallas for directions, and that he gave no affirmative instructions for Daisy’s care.
- J. C. Childs sued for damages for Daisy’s injuries and for the infant’s death, alleging negligent failure to provide adequate medical care by the hospital authority, the nurse, and Dr. Weis.

## Issues

1. Whether a physician who has not undertaken to treat a person and has not formed a physician–patient relationship owes a duty supporting malpractice liability.
2. Whether a physician’s limited telephone communication with a nurse, without agreeing to treat the patient, can create a physician–patient relationship sufficient to impose a duty of care.
3. Whether the summary-judgment record raised a genuine issue of material fact on the existence of an undertaking or physician–patient relationship.

## Decision

- The court affirmed summary judgment for Dr. Weis and upheld the take-nothing judgment against the plaintiff as to him.
- The court held that Dr. Weis’s telephone statement to the nurse did not amount to acceptance of the case or an undertaking to treat.
- Because no physician–patient relationship was created, Dr. Weis owed no malpractice duty to Daisy Childs on this record.
- The court concluded there was no genuine issue of material fact defeating summary judgment on the duty element.

## Legal Principles

- Malpractice liability requires a duty arising from a physician–patient relationship or an undertaking by the physician to provide medical services.
- The physician–patient relationship is treated as consensual in nature; without acceptance of the case by the physician, no professional duty to treat arises.
- A physician is not liable for malpractice for refusing or failing to respond to a request for services where the physician did not agree to treat and did not assume control over the patient’s care.
- Limited telephone communication that merely directs the patient to consult her own physician, without affirmative treatment directions or agreement to treat, does not establish the required relationship.

## Conclusion

The court affirmed summary judgment for the physician because the undisputed record showed he never undertook to treat the patient and never formed a physician–patient relationship; without that relationship, no malpractice duty existed as a matter of law.


Childs v. Weis, 440 S.W.2d 104 (Tex. Civ. App.—Dallas 1969)