In Zimmerly, supra, summary judgment was granted to the physician who was on vacation on the day that the plaintiff was admitted to the emergency room of a hospital.Summary of this case from M.L. v. Panza
May 24, 1999
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly granted the motion of the defendant Craig L. Smestad, s/h/a Craig L. Smestat (hereinafter Dr. Smestad) for summary judgment dismissing the complaint. "[I]t is generally recognized that liability for medical malpractice may not be imposed in the absence of a physician-patient relationship" ( Megally v. LaPorta, 253 A.D.2d 35, 40; see, Finnegan v. Devries, 235 A.D.2d 454; Ellis v. Peter, 211 A.D.2d 353, 355; Lee v. City of New York, 162 A.D.2d 34, 36). Such a relationship "is created when the professional services of a physician are rendered to and accepted by another for the purposes of medical or surgical treatment" ( Lee v. City of New York, supra, at 36; see, Miller v. Sullivan, 214 A.D.2d 822, 823).
In the instant case, Dr. Smestad established that there was no physician-patient relationship between himself and the decedent and, accordingly, that he was entitled to judgment as a matter of law ( see, Leon v. Southside Hosp., 227 A.D.2d 384, 385; Ingber v. Kandler, 128 A.D.2d 591). In opposition to Dr. Smestad's motion, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.