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8 U.S.F. L. Rev. 320 (1973-1974)
The Patient-Physician Relationship: Present Law and Trends for the Future Implied in Cobbs v. Grant

handle is hein.journals/usflr8 and id is 332 raw text is: THE PATIENT-PHYSICIAN RELATIONSHIP: PRESENT LAW AND TRENDS FOR THE FUTURE IMPLIED IN COBBS v. GRANT INTRODUCTION A physician's duty toward his patient is currently governed pri- marily by a standard of care established by the medical community. The failure of a physician to employ that standard of care, when it is the proximate cause of the patient's injury, is negligence. The first portion of this comment fully explores the standard of care and the- ories of negligence in order to provide a paradigmatic framework from which the practicing attorney may conceptualize and effectively plead the malpractice action. A significant case, Cobbs v. Grant, portends great changes in the interpretation the courts are willing to derive from the patient-physician relationship. It is evident from this case that the physician is increasingly being held to the exercise of a fiduciary level of care. Thus, the second portion of the comment explores the ramifications of the physician's fiduciary duty in the developing area of preventive medi- cine. Primarily the emphasis is on the physician's duty to compre- hensively examine the patient by utilizing multiphasic screening pro- cedures. Further analysis yields the proposition that the physician has the duty to refer the patient for conditions thus discovered by analo- gizing between optometrists and physicians. I THE PHYSICIAN'S DUTY: CURRENT INTERPRETATION A. THE PATIENT-PHYSICIAN RELATIONSHIP The relationship of patient and physician is basically contractual, created by express or implied agreement.' That contract may either be general or may be limited by special terms.2 Thus, the patient may bring an action for breach of duty arising out of the contract with the physician.8 Generally, however, malpractice suits are founded upon negligence, since implicit in the patient-physician contract is the re- 1. Agnew v. Parks, 172 Cal. App. 2d 756, 343 P.2d 118 (1959). 2. McNamara v. Emmons, 36 Cal. App. 2d 199, 204, 97 P.2d 503, 507 (1939). 3. Scott v. Simpson, 46 Ga. App. 479, 167 S.E. 920 (1933).

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