In medical malpractice actions, it is the existence of a physician-patient relationship that gives rise to a duty of care owed by the physician, the breach of which is the basis for a cause of action. See McNulty v. City of New York, 100 N.Y.2d 227 (2003); Purdy v. Public Adm’r of Westchester County, 72 N.Y.2d 1 (1988); Pizzo-Juliano v. Southside Hosp., 129 A.D.3d 695 (2d Dept. 2015). The absence of such a relationship usually precludes a malpractice cause of action. Although there are limited circumstances in which a physician will be deemed to owe a duty of care to a non-patient, even in those cases the duty flows from a physician-patient relationship with someone else. See Moore & Gaier, Recent Court of Appeals Decision on Duty to Non-Patients, NYLJ (Feb. 2, 2016), p. 3.

The relationship and attendant duty of care exist where the physician actually treats the patient. See Cregan v. Sachs, 65 A.D.3d 101 (1st Dept. 2010); Dallas-Stephenson v. Waisman, 39 A.D.3d 303, 307 (1st Dept. 2007). However, a physician-patient relationship sufficient to give rise to a duty of care need not be express and may be implied by the circumstances. See Payne v. Rome Memorial Hospital, 177 A.D.3d 1269 (4th Dept. 2019); Rodriguez v. Saal, 43 A.D.3d 272 (1st Dept. 2007); Lee v. City of New York, 162 A.D.2d 34 (2d Dept. 1990).

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