                                                              F I L E D
                                                          United States Court of
                 UNITED STATES COURT OF APPEALS                   Appeals
                                                               Tenth Circuit
                            TENTH CIRCUIT                       FEB 13 1997

                 ______________________________             PATRICK FISHER
                                                                  Clerk
AMANDA DODD-ANDERSON, a minor     )
by and through KRYSTAL L.         )
DODD-ANDERSON, her mother,        )         No. 95-3395
natural guardian and next         )
friend, and KRYSTAL L. DODD-      )         (District of Kansas)
ANDERSON, Individually, BANK      )
ONE, ARIZONA, as trustee for      )
Amanda Dodd-Anderson,             )
                                  )
     Plaintiffs/Appellants,       )         D.C. Nos. 92-1015-MLB
                                  )         and 91-1016-MLB
v.                                )
                                  )
DAVID V. HENDERSON, M.D.,         )
                                  )
     Defendant/Appellee.          )
                 ______________________________

                       ORDER AND JUDGMENT*
                 ______________________________

Before HENRY, MURPHY, and RONEY**, Circuit Judges.
                 ______________________________

     This is a diversity jurisdiction medical malpractice action

brought by Krystal Dodd-Anderson individually and on behalf of her

newborn child, Amanda Dodd-Anderson, alleging two theories of

_____________
     *This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata and collateral
estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.


     **The Honorable Paul H. Roney, Senior Circuit Judge for the
Eleventh Circuit, sitting by designation.
liability against the defendant Dr. David V. Henderson. First, Dr.

Henderson acted negligently when he came to the delivery room

within a few minutes after the birth and, although the child was

seriously distressed and depressed, he failed to take action to

have her transferred to another hospital that was licensed to care

for distressed newborns.        Second, Dr. Henderson was negligent

because as chief of staff of the hospital he did not take action to

have the attending doctor’s privileges revoked or suspended.           The

district court held that no duty arose under either a physician-
patient relationship or in connection with defendant’s role as the

hospital’s chief-of-staff. Dodd-Anderson v. Stevens, 905 F. Supp.
937 (D. Kan. 1995).   We affirm.

     To establish a claim for medical malpractice, plaintiffs must

show that defendant owed them a duty, that he breached his duty,

and that there is a causal connection between the breached duty and

the injuries sustained.    Mellies v. National Heritage, Inc., 636
P.2d 215 (Kan. App. 1981).

     The patient in this case, Amanda Dodd-Anderson, was a newborn
suffering from respiratory problems when she was delivered by

obstetrician Dr. Mildred Stevens at Anderson County Hospital in

January   1995.   After   the   birth,   a   respiratory   therapist    in

attendance was apparently concerned about the newborn’s respiratory

difficulties and asked defendant Dr. David Henderson, medical

director of respiratory therapy and chief-of-staff, to come to the
hospital.   Dr. Henderson observed the baby from a few feet away,

and discussed with Dr. Stevens whether she intended to have the

                                   2
baby transferred to another hospital. Dr. Stevens said she did not

think a transfer was necessary, but that she would if the baby’s

condition changed. The day after the delivery, Dr. Stevens and Dr.

Henderson again discussed the baby's condition and Dr. Stevens

decided to transfer the baby to Kansas University Medical Center,

where the newborn could receive tertiary care.           She was later

diagnosed with cerebral palsy.

     Amanda Dodd-Anderson, by and through her mother Krystal Dodd-

Anderson, and Krystal Dodd-Anderson, individually, sued Anderson
County Hospital, Dr. Stevens, and Dr. Henderson, alleging all

defendants negligently caused Amanda injury during her delivery.
Plaintiffs settled all claims against the hospital and Dr. Stevens,

leaving only the claims against Dr. Henderson.

                                   I.

      The first theory behind plaintiffs’ claim is that the baby

was injured because she was not transferred to a tertiary care
facility soon enough and that the delay caused injury.

     Dr.   Henderson   did   not   enter   into   a   physician-patient
relationship with plaintiffs simply by coming to the hospital at

the respiratory therapist’s request, observing the newborn and

suggesting the newborn be transferred to another hospital.

     No cases from Kansas or any other jurisdiction have been found

that hold that a physician who merely offers medical advice to an

attending physician stands in a physician-patient relationship with
that physician's patient such that the advising doctor has a duty



                                   3
to force the attending physician to follow that advice.               The cases

cited by the plaintiffs are inapplicable.

       In State v. Pitchford, 697 P.2d 896 (Kan. App. 1985), a

physician had drawn blood from a criminal defendant against his

will.    There was no issue as to whether the physician had treated

the defendant, but whether            nonconsensual    treatment created a

physician-patient relationship.

       In both cases cited from other jurisdictions, Greenberg v.

Perkins, 845 P.2d 530 (Colo. 1993), and             Walters v. Rinkers, 520
N.E.2d 468 (Ind. Ct. App. 1988), the defendant physician had direct

contact with the plaintiff patient sufficient to raise a question
as to duty.         The patient in     Greenberg suffered injuries from

testing procedures conducted by a third-party. The patient brought

a negligence action against the physician who had ordered the

testing after conducting his own independent medical examination of

the patient. He "spent approximately ten to fifteen minutes taking
[the patient's] medical history . . . and physically examining her

cervical spine and upper extremities." Greenberg, 845 P.2d at 531-
32.     In     Walters v. Rinkers ,      the     patient    brought   a   medical

malpractice action against a pathologist for misdiagnosis of a

tumor removed from the patient's body.              There is no dispute but

that the pathologist examined the tumor, consulted with other

pathologists, and made findings in a report that was relied upon by

patient's family physician.           Walters, 520 N.E.2d at 470.
       The contact defendant had with plaintiff is insufficient even

to    create    a   jury   question    as   to    whether    a   doctor-patient

                                        4
relationship existed as in Rule v. Cheeseman, 317 P.2d 472 (Kan.

1957), relied upon by the plaintiffs.         In Cheeseman, the injured

plaintiff sued not only the resident who performed the surgery, but

also Dr. Cheeseman as the supervising physician. In that case, Dr.

Cheeseman had discussed the surgery with the patient a few days

before,   had    examined   the   patient,   and   had   assisted   in   the

operation.      From the initial visits through surgery and follow up

visits, “there was not the slightest break in the relationship of

patient and surgeon between plaintiff and Doctor Cheeseman. . . .”
Cheeseman, 317 P.2d at 478.

     Unlike the cases cited by plaintiffs, Dr. Henderson had no
contact   with plaintiffs prior to the delivery, conducted no

independent physical examinations, nor did he have any follow up

contact with plaintiffs.     Dr. Henderson was present only by virtue

of a phone conversation with an attending therapist, not upon

request of the physician in charge. The district court questioned
whether even under the facts of Cheeseman, a present day court

would find a jury question.       Whether or notCheeseman would be good
law today, the minimal involvement Dr. Henderson had with this

patient did not raise a genuine issue as to whether Dr. Henderson’s

acts established a traditional doctor-patient relationship.

                                    II.

     Plaintiffs alternatively argue that defendant’s status as

chief of the medical staff gave rise to a duty to intervene in the
baby’s treatment and to strip Dr. Stevens of staff privileges at

the hospital.      They assert that the applicable law is set out in

                                     5
the Restatement (Second) of Torts section 324A (1965), adopted by

Kansas in Schmeck v. City of Shawnee, 651 P.2d 585 (Kan. 1982),

which states:

     One who undertakes, gratuitously or for consideration, to
     render services to another which he should recognize as
     necessary for the protection of a third person or his
     things, is subject to liability to the third person for
     physical harm resulting from his failure to exercise
     reasonable care to protect his undertaking, if

          (a)   his failure to exercise reasonable care
                increased the risk of such harm, or

          (b)   he has undertaken to perform a duty owed by the
                other to the third person, or

          (c)   the harm is suffered because of reliance of the
                other or the third person upon the undertaking.
     Plaintiffs argue that Dr. Henderson undertook the hospital’s

duty to oversee the medical staff of the county hospital and the

hospital's governing body relied upon defendant to report to them

regarding medical staff, so that he is liable for his neglect in

failing to supervise Dr. Stevens and in failing to revoke her
privileges.

     Kansas courts have not considered section 324A in the context
of medical malpractice actions. We find it inapplicable here where

Dr. Henderson’s obligations as chief-of-staff are defined by the

hospital’s bylaws.   There is no evidence in the record to support

plaintiffs’ assertions that under the bylaws, Dr. Henderson was

obligated to “supervise” other physicians, nor is there any record

evidence that Dr. Henderson had or should have had any information
that would support a conclusion that Dr. Stevens was incompetent.

In their brief and at oral argument, plaintiffs made repeated

                                6
references    to   Dr.   Henderson’s   failure   to   have   the   patient

transferred immediately “when he knew Amanda was being kept in a

hospital that did not have the staff or the facilities to treat her

. . . ," and that “Anderson County Hospital was a Level I hospital

and had no license or permit to care for severely depressed

newborns such as Amanda Dodd-Anderson."      Plaintiffs asserted that

as a matter of law, Amanda had no business being a patient at the

hospital. The only record cite for these statements in plaintiffs'

brief is the deposition of Danielle Hansel, management consultant
to the hospital, in which she merely acknowledges she was aware of

the facts surrounding the baby’s care from either conversations
with the nurses and doctors or from her independent review of the

record.      Despite plaintiffs’ assurance to the Court at oral

argument that the record supported such allegations, our search of

the record revealed no evidence pertaining to this argument.

     Neither a traditional doctor-patient relationship nor any
relationship arising out of Dr. Henderson's administrative roles

exists under these facts. Even if Dr. Henderson incurred some duty
when he responded to the call of the respiratory therapist, it was

only a duty to inform Dr. Stevens of his impressions based on his

limited knowledge of the patient.         This he did.       There is no

evidence that he was wrong in this regard.

     We hold that no doctor-patient relationship existed between

the parties, whatever duties Dr. Henderson owed the parties were
fulfilled, and that Dr. Henderson had no duty arising out of his

administrative position to suspend Dr. Stevens.

                                   7
     In light of our opinion regarding the question of duty, we

need not address plaintiffs’ challenge to the applicability and the

constitutionality of Kansas Statutes Annotation section 65-442(a).

     AFFIRMED.

                                    Entered for the Court
                                    Paul H. Roney
                                    Circuit Judge




                                8
