9478. EDWARD TOM, plfres, v. NARAYAN SUNDARESAN, def-ap, LENOX HILL HOSPITAL def — Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for ap — Steven E. North, P.C., New York (Steven E. North of counsel), for res — Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 24, 2012, which, insofar as appealed from as limited by the briefs, denied the motion of defendant Narayan Sundaresan for summary judgment dismissing that part of the cause of action alleging medical malpractice as against him premised on departures prior to April 11, 2005, and the cause of action as against him alleging lack of informed consent, unanimously modified, on the law, to grant the motion to the extent of dismissing the cause of action alleging lack of informed consent, and otherwise affirmed, without costs.
The court properly denied the motion of Sundaresan, a neurosurgeon, for summary judgment dismissing the malpractice claim arising from care rendered before April 11, 2005 on the basis of a lack of a duty of care. The record presents triable issues as to whether a physician-patient relationship existed as of the evening of April 10th by virtue of a telephone consultation between Dr. Sundaresan and the other individual defendant neurosurgeon, Dr. Holtzman. While the issue of whether a physician owes a duty of care is a question of law, whether a physician-patient relationship exists is generally an issue of fact (Raptis-Smith v. St. Joseph’s Med. Ctr., 302 AD2d 246, 247 [1st Dept 2003]; Cogswell v. Chapman, 249 AD2d 865, 866 [3rd Dept 1998]). To overcome a motion for summary judgment on the issue of whether a physicianpatient relationship exists, “[i]t is not necessary that a [physician] see, examine, take a history of or treat a patient” (Raptis-Smith, 302 AD2d at 247). Indeed, plaintiffs have overcome summary judgment on the existence of a physician-patient relationship in cases where the moving physician had formulated plans in conjunction with other medical professionals who later relied on those recommendations (Scalisi v. Oberlander, 96 AD3d 106, 123 [1st Dept 2012]), and where there was testimony that the physician consulted with a nurse midwife concerning the treatment of the plaintiff (Santos v. Rosing, 60 AD3d 500 [1st Dept 2009]).
