## Facts

- Sandra M. Lection arrived by ambulance at a hospital emergency room with slurred speech, hemiparesis, severe headache, dizziness, and other neurological symptoms.
- The emergency physician, Dr. Nabeel Syed, examined her and ordered testing, then paged the on-call neurologist, Dr. Louis Dyll.
- Dyll telephoned Syed; Syed relayed examination findings and test results and asked what further care was needed.
- According to Syed, Dyll stated no further treatment was needed, the presentation sounded like a hemiplegic migraine, and nothing further needed to be done, including hospital admission.
- During the call, Syed learned Lection was no longer in the room and told Dyll; Dyll said it was acceptable that she had gone home.
- Syed testified that admission would be based on what Dyll told him and that he did not contact Lection to return because he believed admission was unnecessary in light of her findings and Dyll’s advice.
- Evidence conflicted about whether Lection left before or after Dyll’s recommendations were relayed, and what was communicated to her.
- The next morning, Lection suffered a disabling stroke.
- Lection sued Dyll for negligent failure to diagnose and treat, alleging his misdiagnosis and failure to recommend further treatment or admission caused or contributed to the stroke.

## Issues

1. Whether the trial court committed reversible procedural error in reconsidering and granting Dyll’s renewed motion for summary judgment.
2. Whether, as a matter of law on summary judgment, Dyll conclusively negated the existence of a physician–patient relationship (and thus any duty) arising from his on-call, patient-specific telephone consultation.

## Decision

- The appellate court rejected Lection’s procedural objections and reviewed the summary judgment on the merits.
- The court granted rehearing, withdrew its prior affirmance, and reversed the take-nothing summary judgment for Dyll.
- The court held Dyll did not conclusively establish the absence of a physician–patient relationship or duty.
- The case was remanded for further proceedings.

## Legal Principles

- In Texas, a physician’s duty generally arises from a consensual physician–patient relationship, which may be express or implied.
- A physician–patient relationship can be implied by affirmative acts directed toward diagnosing or treating an identifiable patient, even without face-to-face contact.
- An on-call specialist’s patient-specific diagnostic and treatment directives given to an emergency physician may constitute participation in the patient’s care sufficient to create a duty.
- On summary judgment, the movant must conclusively negate duty; genuine disputes about the physician’s undertakings and the surrounding circumstances preclude judgment as a matter of law.

## Conclusion

Because the record showed Dyll, as the on-call neurologist, gave case-specific diagnostic and treatment recommendations that influenced the emergency physician’s care decisions, and because disputed facts remained about the interaction and its effect on Lection’s disposition, summary judgment on “no duty” grounds was improper and the case was returned to the trial court.


Lection v. Dyll, 65 S.W.3d 696 (Tex. App.—Dallas 2001, no pet.)