## Facts

- Ashley Irvin, age 12, had hydrocephalus managed by a ventriculoperitoneal (VP) shunt.
- In October 1995 she developed seizures and flulike symptoms; her neurosurgeon examined her and did not diagnose a shunt malfunction.
- X-rays taken during that period showed the distal shunt tubing had become obstructed/ineffective as Ashley grew, but the problem was not acted on.
- About a month later Ashley was evaluated by another physician who suspected shunt malfunction; new X-rays were read as normal, and prior October films were not obtained or reviewed.
- Ashley was transferred to a hospital where Dr. Lindall E. Smith, a pediatric intensivist, assumed care; Smith received the October films but did not review them.
- Smith telephoned Dr. Richard C. Gilmartin, a pediatric neurologist, who had not met Ashley and did not review her chart or films at that time.
- During the phone discussion, Smith and Gilmartin agreed Gilmartin would evaluate Ashley the next morning and perform a shuntogram to assess obstruction.
- Before the planned evaluation, Ashley acutely worsened; a later shuntogram confirmed obstruction, the shunt was corrected, and Ashley suffered severe permanent brain injury requiring continuous care.
- Ashley and her parents sued multiple physicians, including Smith and Gilmartin, alleging negligent delay in diagnosis and treatment.

## Issues

1. Whether a physician–patient relationship (and thus a duty of care) arose from Gilmartin’s informal telephone consultation and agreement to see Ashley the next day, making summary judgment improper.
2. Whether sufficient evidence and trial rulings supported the jury’s defense verdict for Smith on the malpractice claims.

## Decision

- The Kansas Supreme Court affirmed summary judgment for Gilmartin.
- The court held no physician–patient relationship existed between Gilmartin and Ashley at the relevant time; therefore, Gilmartin owed no duty of care.
- The court affirmed the judgment on the jury verdict for Smith, finding sufficient evidentiary support and no reversible trial error.
- The district court’s judgment was affirmed in all material respects.

## Legal Principles

- Summary judgment is proper when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law; the record is viewed in favor of the nonmovant.
- In medical malpractice, the existence of a duty depends on the existence of a physician–patient relationship.
- Whether a physician–patient relationship exists is generally a fact question, but may be resolved on summary judgment when the evidence is clear, undisputed, and permits only one conclusion.
- A physician–patient relationship is consensual and may be implied by conduct; a formal contract is not required.
- An informal physician-to-physician consultation, without the consultant’s undertaking of responsibility for the patient’s care, does not create a physician–patient relationship or malpractice duty.
- A consultant’s anticipated future involvement (e.g., agreement to see the patient later) does not itself establish a present physician–patient relationship absent purposeful participation in diagnosis or treatment (such as reviewing records and directing care).

## Conclusion

The court held that a consulting physician’s informal telephone discussion and plan to evaluate a patient later did not create a physician–patient relationship or duty, and it upheld the defense verdict for the treating physician based on the jury’s resolution of disputed negligence evidence and lack of reversible error.


Irvin v. Smith, 272 Kan. 112, 31 P.3d 934 (Kan. 2001)