RUIZ, Associate Judge, dissenting:

This medical malpractice case presents an issue of first impression for our court: when does a non-primary, or consulting, doctor owe a duty to a patient? Specifically, we are asked whether Dr. Miodovnik owed a duty of reasonable care to Mrs. Saara Abdul-Haqq, a patient of the District of Columbia Birth Center ("DCBC"). We are not asked to decide what the standard of care is or whether it was breached, as the case did not proceed on that basis to summary judgment in the trial court.

As the majority correctly notes, in most of our previously-decided medical malpractice cases, there has been no dispute that the physician, or hospital, owed a duty to the patient. See ante note 5. Moreover, facts that go to the existence of a duty and what the standard of care is might overlap. But these are legally distinct issues; the former is a legal question for the court, and the latter, one of fact for the jury. In deciding that Dr. Miodovnik had no "duty to intervene" the majority has conflated these two concepts, and improperly decides a factual question that is for the jury and has yet to be addressed by the parties. In short, it has non-suited the case on the merits instead of deciding the legal issue of duty vel non that has been presented to the court.

I disagree with the majority's analysis and its conclusion. Because the facts of record suffice to establish that a duty was owed to Mrs. Abdul-Haqq by Dr. Miodovnik, the grant of summary judgment to Dr. Miodovnik and his employer, the Washington Hospital Center, was in error and should be reversed. The case should be remanded so that the parties can develop the record on the standard of care, whether it was breached, and whether the breach caused the damages alleged.

I. Duty vs. Standard of Care

"It is fundamental in tort law that one can be held liable for negligence only if there was a duty. . . ." Williams v. Baker, 572 A.2d 1062, 1064 (D.C. 1990) (en banc); see also N.O.L. v. District of Columbia, 674 A.2d 498, 499 n. 2 (D.C. 1995) ("The foundation of modern negligence law is the existence of a duty owed by the defendant to the plaintiff."). Once duty is established, it is well settled that "[i]n a medical malpractice action, there are three elements a plaintiff must show to establish a prima facie case: `(1) the applicable standard of care; (2) a deviation from that standard of care by the defendant; and (3) a causal relationship between that deviation and the plaintiff's injury.'" Burke v. Scaggs, 867 A.2d 213, 217 (D.C. 2005) (emphasis omitted) (quoting Talley v. Varma, 689 A.2d 547, 552 (D.C. 1997)).

The majority "assume[s], without deciding, that Dr. Miodovnik had a duty to use reasonable care when conferring with the nurse-midwives from DCBC, and that in some circumstances this duty would extend to the patient." See ante page 990. Based on the assumption the majority is willing to make — that Dr. Miodovnik owed a duty to Mrs. Abdul-Haqq "in some circumstances" — the case should be remanded for further proceedings to determine what the scope of that duty is under the circumstances of this case and whether the applicable standard of care was breached. Instead, the majority frames the "crucial question in this case" as "whether Dr. Miodovnik had a duty to intervene in the care of Mrs. Abdul-Haqq." See ante note 5 pages 989-91 (emphasis added). The majority then concludes that summary judgment was properly granted to appellees because Dr. Miodovnik had no duty to "take charge of Mrs. Abdul-Haqq's treatment," see ante page 996, or "take over [her] care and treatment," see ante page 996, and had "no duty to intervene in Mrs. Abdul-Haqq's care by ordering a caesarean section or by personally advising her not to attempt a VBAC." See ante page 997.

There is a significant and well-established distinction between the existence of a duty and a determination of the applicable standard of care. Whether a duty exists is a question of law to be determined by the court, see Settles v. Redstone Dev. Corp., 797 A.2d 692, 695 (D.C. 2002) ("The question . . . whether a defendant owes a duty to the plaintiff under a particular set of circumstances is entirely a question of law that must be determined only by the court." (alteration in original) (quoting Croce v. Hall, 657 A.2d 307, 310 (D.C. 1995))), whereas a determination of the applicable standard of care is a question of fact to be found by the jury based on expert testimony. See, e.g., Burke, 867 A.2d at 219 ("Determining the applicable standard of care is a question of fact for the jury."); Strickland v. Pinder, 899 A.2d 770, 773 (D.C. 2006) ("At the outset of a medical malpractice case, `the plaintiff must establish through expert testimony the course of action that a reasonably prudent doctor with the defendant's specialty would have taken under the same or similar circumstances.'" (quoting Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984))); Ray v. Am. Nat'l Red Cross, 696 A.2d 399, 404 (D.C. 1997) ("[T]he jury, informed by expert testimony where appropriate, determines what the applicable standard of care is in a particular case.").

Because of the separate and distinct natures of the duty and standard of care inquiries, I disagree with the majority's formulation of the issue before us. Appellees moved for summary judgment solely on the ground that Dr. Miodovnik had "no duty" to Mrs. Abdul-Haqq. They have not argued — in the trial court or on appeal — that appellants have no evidence of the standard of care or its breach. The case simply has not progressed to that point. The scope of the duty (i.e., the standard of care) that Dr. Miodovnik had, if any, was simply not before the trial court on summary judgment and is not before us on appeal.

Neither the trial court nor the parties framed the question on summary judgment as whether Dr. Miodovnik had a duty "to intervene," or "take over" Mrs. Abdul-Haqq's case and displace the nurse-midwives who were her primary healthcare providers. Appellants did not allege in their complaint that Dr. Miodovnik had a duty "to intervene." What the complaint alleges is that Dr. Miodovnik breached the standard of care by failing, inter alia, "to properly inform [Mrs. Abdul-Haqq] of the risk of fetal injury in delivering vaginally following two prior caesarean sections and no prior vaginal delivery," "to give proper advice in consulting with [DCBC]," "to advise [DCBC] that Mrs. Abdul-Haqq should be referred to an obstetrician for management in light of [her] obstetrical history," "to adhere to ACOG Practice Bulletin No. 54," and "to have and follow safe policies concerning the care and treatment of VBAC patients with two prior caesarian sections and no prior vaginal delivery." In short, as appellant's brief succinctly puts it, of failing "to properly perform the one function required of him — determining a proper treatment plan." Whether Dr. Miodovnik should have "intervened," moreover, is not relevant to whether he had a legal duty but to the standard of care, i.e., what someone in Dr. Miodovnik's consulting role should have done under the circumstances.

A further flaw in the majority's analysis is its erroneous premise that there is "no evidence" that Dr. Miodovnik "gave bad advice or failed to identify any material risks of which Nurse-Midwife Alexander was not aware." See ante page 990. At this preliminary stage of the proceedings, the only question is whether a legal duty was owed. Appellees have not challenged the evidence on standard of care because the parties have not yet developed the factual record on the standard of care.

In any event, although I express no opinion on the merits of appellants' claims, I note that even at this preliminary stage of the litigation the record shows that there is evidence from which a jury could find that Dr. Miodovnik breached the standard of care. Dr. Miodovnik testified that he told Nurse-Midwife Alexander not only to reiterate the risks of a vaginal delivery to Mrs. Abdul-Haqq but also to advise her that a caesarean section was medically recommended, and that he expected that the nurse-midwife would do so. From this testimony — which Nurse-Midwife Alexander disputes in part — a jury could reasonably infer that Dr. Miodovnik was well aware of the seriousness of the risk to Mrs. Abdul-Haqq, but that he failed to give the advice he thought necessary to the DCBC, that he failed to follow-up with the nurse-midwife to see whether Mrs. Abdul-Haqq continued on a course he considered to be ill-advised and, if necessary, to offer further advice and assistance to the nurse-midwives related to the patient's treatment plan. Whether Dr. Miodovnik owed a duty to the patient (which the majority is willing to assume), and what that duty required, including some sort of as yet-undefined "intervention" in her care beyond giving proper advice to DCBC, however, are two different things. The former is the question before the court; the latter is for the fact finder after hearing expert testimony and considering published standards.

In my view, the majority has gone beyond the question presented to the court — whether a duty was owed — and has not only set out what it considers to be the standard of care (whether "to take charge" or "to intervene") but has also decided that Dr. Miodovnik did not breach it. For the reasons discussed below, I would hold that the evidence established the existence of a duty, and remand the case for further proceedings on the remaining elements of negligence: what the national standard of care is for someone in Dr. Miodovnik's position, whether that standard was breached, and, if so, whether the breach was the proximate cause of appellants' injuries.

II. Standard of Review for Summary Judgment

The question at issue in this appeal is whether the trial judge should have granted Dr. Miodovnik's motion for summary judgment on the ground that he did not owe a duty of reasonable care to the patient. Citing Newborn v. United States, 238 F.Supp.2d 145 (D.D.C. 2002), aff'd, 84 Fed.Appx. 97 (D.C. Cir. 2003) (unpublished), the trial judge ruled that Dr. Miodovnik's "isolated and non-binding consultation with [Nurse-Midwife] Alexander was insufficient to create a duty vis-vis plaintiff Abdul-Haqq."

In reviewing a grant of summary judgment this court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences from the evidence in her favor. See Herbin v. Hoeffel 806 A.2d 186, 190-91 (D.C. 2002). "Summary judgment is proper if there are no disputed issues of material fact and a party is entitled to judgment as a matter of law." Minch v. District of Columbia, 952 A.2d 929, 936 (D.C. 2008).

Viewing the facts of record in the light most favorable to appellants, who opposed the motion for summary judgment, the evidence established that not only pursuant to his formal contractual relationship as Medical Director of the DCBC, but also as a matter of fact, Dr. Miodovnik exercised a measure of control over the treatment of patients at the DCBC, and did so specifically in Mrs. Abdul-Haqq's case. Pursuant to the MOU for consulting services, the nurse-midwives had established a practice of regular consultation with Dr. Miodovnik to obtain an assessment and plan for patients between 34 and 37 weeks gestation. The nurse-midwives looked to Dr. Miodovnik for advice and recommendations, and they did what he advised them to do. Dr. Miodovnik reviewed Mrs. Abdul-Haqq's history of two prior caesarean sections, with no prior vaginal delivery, and wrote treatment notes and recommended medication for the proposed vaginal delivery on her individual medical chart. As discussed infra, these facts, viewed in their totality and favorably to appellants, when considered in light of the policy considerations that we and other jurisdictions have expressed in determining whether the law recognizes a duty, establish that Dr. Miodovnik owed a duty to Mrs. Abdul-Haqq. Because Dr. Miodovnik was not entitled to judgment as a matter of law, therefore, summary judgment for appellees was in error and should be reversed, so that the litigation can continue. Still to be addressed by the parties and submitted to the jury are several elements: what the standard of care is for a person in Dr. Miodovnik's position, whether he breached it, whether the injuries for which damages are claimed were proximately caused by the breach, and, if so, the amount of damages.

III. Duty

A. Physician-Patient Relationship

As the majority mentions, see ante note 9, courts disagree on whether a physician-patient relationship is necessary to give rise to a duty in a medical malpractice action. While some courts have held that such a relationship is not necessary to give rise to a duty, see Diggs v. Arizona Car diologists, Ltd., 198 Ariz. 198, 8 P.3d 386, 387 (Ct.App. 2000); Greenberg v. Perkins, 845 P.2d 530, 538-39 (Colo. 1993), others have held that a physician-patient relationship is a precondition to the existence of a legal duty. See Wilson v. Athens-Limestone Hosp., 894 So.2d 630, 633 (Ala. 2004); Sterling v. Johns Hopkins Hosp., 145 Md. App. 161, 802 A.2d 440, 445 (2002); Hill v. Kokosky, 186 Mich.App. 300, 463 N.W.2d 265, 266 (1990); Lownsbury v. VanBuren, 94 Ohio St.3d 231, 762 N.E.2d 354, 357-58 (2002). I agree with the assessment of the D.C. federal trial court in Newborn that "[t]he existence of a physician-patient relationship . . . is not one of the elements of negligence law in cases against doctors according to D.C. law." Newborn, 238 F.Supp.2d at 149 n. 2. This view is supported by our repeated statements that the existence of a duty depends on a "policy decision[]," Williams, 572 A.2d at 1064, that "the law will extend the responsibility for the conduct to the consequences which have in fact occurred." District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C. 1984) (quoting PROSSER, HANDBOOK OF THE LAW OF TORTS § 42 (4th ed. 1971)). These statements strongly suggest that the duty analysis is rooted in the circumstances of the particular case, and not on whether there is a traditional doctor-patient relationship.

B. Elements of Duty

In conducting a fact-based contextual analysis to determine whether a consulting doctor owes a duty to the patient, courts in this and other jurisdictions have considered a number of factors: the degree of supervision and control exercised by the consulting doctor over the primary healthcare provider, whether the consultation was required by policy or protocol, the existence of a contractual relationship, and considerations of public policy. All of these factors, when applied to the facts in this case, lead to the conclusion that Dr. Miodovnik owed a duty of reasonable care under the circumstances to Mrs. Abdul-Haqq.

"The existence vel non of a consulting doctor's duty to a patient and the nature of that duty depends upon the degree and frequency of her involvement with the patient's treatment. Substantial or frequent consultation that amounts to virtual supervision of a patient's treatment tends to give rise to a duty, whereas informal or occasional consultation does not." Newborn, 238 F.Supp.2d at 149. There is no set test for determining whether a consulting physician's involvement is "substantial or frequent," or "informal or occasional"; rather, courts look to the "precise circumstances" of each case. See id. The critical factors that led the court in Newborn to determine that there was no duty were: (1) that the treating physicians retained control over the patient's treatment and did not look to the consulting doctor for supervision, and (2) that there was no policy or protocol requiring a consultation between doctors at the two institutions. Id. at 150.

1. Supervision and Retention of Control

In Newborn, the primary treating physician was deemed to have "retained control" over a patient's treatment, despite consulting with another physician, based on several factors. First, the treating physician exercised "independent judgment" in determining treatment, 238 F.Supp.2d at 150 ("Dr. Devenport exercised independent judgment in treating Kenny. . . ."), which may be demonstrated by having the freedom to accept or reject the advice offered by the consulting physician. See Sterling, 802 A.2d at 455 (noting that "[w]here . . . the treating physician exercises his or her own independent judgment in determining whether to accept or reject [a consultant's] advice, . . . the consultative physician should not be regarded as a joint provider of medical services") (alterations in original) (quoting Gilinsky v. Indelicato, 894 F.Supp. 86, 92 (E.D.N.Y. 1995)); compare Corbet v. McKinney, 980 S.W.2d 166, 171 (Mo.Ct.App. 1998) ("Dr. Ockner was free to accept or reject defendant's recommendation at his discretion."), and Hill, 463 N.W.2d at 267 ("Defendants' medical opinions . . . were recommendations to be accepted or rejected by [the treating physician] as he saw fit."), with Diggs, 8 P.3d at 391 ("Dr. Johnson did not exercise independent judgment as to Cynthia Diggs' diagnosis; rather he subordinated his professional judgment to that of the specialist in cardiology, Dr. Valdez."). Second, the primary physician was capable of handling the patient's medical crisis, see Newborn, 238 F.Supp.2d at 150 ("Dr. Merino . . . believed that [Dr. Devenport] could handle treatment of a patient experiencing sickle cell crisis."); see also Bessenyei v. Raiti, 266 F.Supp.2d 408, 413 (D.Md. 2003) ("The conversation that took place . . . was a conversation between two doctors of comparable ability and competence to handle the situation."). Third, the advice received by the primary physician was in the nature of a second opinion or informal advice from a colleague. See Newborn, 238 F.Supp.2d at 150 ("Dr. Devenport stated that his call to Dr. Merino . . . was to get a second opinion. . . ."); see also Oja v. Kin, 229 Mich.App. 184, 581 N.W.2d 739, 743 (1998) ("[M]erely listening to another physician's description of a patient's problem and offering a professional opinion regarding the proper course of treatment is not enough. Under those circumstances, a doctor . . . is simply offering informal assistance to a colleague.").

On the other hand, a consulting physician becomes a joint provider of medical services to the patient, and incurs a legal duty to that patient, if (1) the consulting doctor's advice is in the nature of a diagnosis or prescribes a course of treatment, see Lownsbury, 762 N.E.2d at 362 (noting that a physician may consent to a physician-patient relationship and thereby assume a duty by taking "certain actions that indicate knowing consent, such as examining, diagnosing, treating, or prescribing treatment for the patient."); cf. Newborn, 238 F.Supp.2d at 150 ("Dr. Devenport stated that his call to Dr. Merino . . . [was] not to be directed on how to treat Kenny."), or (2) the consulting doctor knows that the treating physician looks for supervision from the consulting physician and will rely on that advice. See Diggs, 8 P.3d at 387 ("[W]hen Dr. Valdez undertook to give advice to Dr. Johnson regarding Mrs. Diggs' care and treatment, knowing that Dr. Johnson would rely on this advice, Dr. Valdez owed a duty of reasonable care to Mrs. Diggs."); cf. Newborn, 238 F.Supp.2d at 150 (noting that "[t]he doctors [in Germany] . . . did not look to Dr. Merino for supervision" or "guidance"); Cogswell v. Chapman, 249 A.D.2d 865, 866-67, 672 N.Y.S.2d 460 (1998) (concluding that consulting doctor's involvement in patient's care was a disputed question of fact "especially in light of [the consulting doctor's] expertise in the field of ophthalmology and [the primary doctor's] lack of expertise in this area").

The record in this case, viewed favorably to appellants, amply supports the conclusion that, unlike the primary care physician in Newborn, the nurse-midwives did not retain exclusive control over Mrs. Abdul-Haqq's care — far from it. Nurse-Midwife Alexander testified that she and the other DCBC nurse-midwives "tried very hard to follow [Dr. Miodovnik's] recommendation[s];" Nurse-Midwife Mairi Rothman (who assisted Mrs. Abdul-Haqq when she arrived in labor to WHC) testified that the relationship between the DCBC nurse-midwives and Dr. Miodovnik was "such that he can tell us not to goahead and I have to do whatever he says," and while she "d[id]n't know that that's a rule," she said that "[i]t's common sense." Dr. Miodovnik agreed with the nurse-midwives' assessment, stating in his deposition that although nurse-midwives could choose to do otherwise, his "advice [and] recommendation should be taken very seriously by any obstetrician or independent practitioner such as a midwife." In short, the testimony shows that the nurse-midwives did not feel free to reject Dr. Miodovnik's advice, but rather looked to him for his superior knowledge and experience, and that Dr. Miodovnik saw himself as a supervisor providing essential guidance to them.

Dr. Miodovnik was not, as the majority suggests, a "peer" of Nurse-Midwife Alexander when they met to discuss Mrs. Abdul-Haqq's case on March 21, 2005. See ante page 994. Dr. Miodovnik was the Chief of Obstetrics and Gynecology at WHC and the Medical Director of DCBC, the employer of the nurse-midwives. Nurse-Midwife Alexander testified that Dr. Miodovnik was "our consulting obstetrician. He's an expert in obstetrics and gynecology. He is the senior person on our medical staff." She acknowledged that Dr. Miodovnik knows more about obstetrics than do the nurse-midwives. The consultation of March 21, 2005, therefore, was not "between two doctors of comparable ability and competence to handle the situation." See Bessenyei, 266 F.Supp.2d at 413. Dr. Miodovnik, as a self-described recognized expert in "maternal-fetal medicine," was in a superior position to assess the risks and correct any error in the proposed treatment plan. See Diggs, 8 P.3d at 390 (finding a duty where the consulting physician, "with his superior knowledge and experience, was in the best position to correct any error in [the treating physician's] diagnosis," and was aware that his advice would be relied upon). Based on Dr. Miodovnik's testimony, a jury could find that he perceived the risk to Mrs. Abdul-Haqq to be significantly higher than disclosed in the DCBC Consent form that had been presented to her early in the pregnancy.

The MOU between WHC and the DCBC recognizes that in certain circumstances, the nurse-midwives have a subordinated role, stating that they agree to "work in collaboration and/or under medical direction when complications arise." (Emphasis added.) That was precisely the situation in this case. Nurse-Midwife Alexander testified that she orally presented Mrs. Abdul-Haqq's medical history, including that she had two prior caesarean sections and no prior vaginal delivery. She then asked Dr. Miodovnik "for anassessment and plan" for Mrs. Abdul-Haqq, who wanted to have a vaginal birth. As an obstetrician, Dr. Miodovnik knew that, under published standards, a VBAC such as was proposed for Mrs. Abdul-Haqq "should not be attempted." ACOG Practice Bulletin No. 54, at 5. Reflecting his awareness of this standard and of his supervisory role with respect to a patient whose history raised a risk of serious "complications," in his deposition Dr. Miodovnik stated that "it was strongly recommended to the midwife that the patient will have [a] repeat caesarean section." It is a disputed fact, however, whether he did so. Nurse-Midwife Alexander testified at deposition that had Dr. Miodovnik told her "in no uncertain terms that [Mrs. Abdul-Haqq] was not a candidate for a VBAC and should get a C-section," "[w]e would have gone back to the client and spoken to her about his strong recommendation that she have a C-section, and given her that information as directly as possible and asked her to make the best decision for herself and her baby based on his recommendation." What Nurse-Midwife Alexander said she would have done (if Dr. Miodovnik had so advised her) is what DCBC's nurse-midwife expert, Carolyn Gregor, testified the standard of care required her to do. Dr. Miodovnik also testified that if a patient in Mrs. Abdul-Haqq's condition continued to object to a caesarean section, he "expected the midwife to refer [her] to us, either the high-risk clinic and to myself, for further discussion," and that either he or someone else in the high-risk clinic "could have persuaded [Mrs. Abdul-Haqq] to have a repeat caesarean section." That did not happen, and Dr. Miodovnik testified that he did not follow-up. In short, the record contradicts the majority's assertion that Nurse-Midwife Alexander "was no less qualified than [Dr. Miodovnik] to speak with the patient and arrange for the [caesarean section]." See ante page 994. Unlike in Newborn, Dr. Miodovnik's testimony indicates his awareness that the nurse-midwives might not be capable of handling alone a complicated case such as the one presented by Mrs. Abdul-Haqq because of the importance of explaining the medical risks. See supra note 5; cf. Newborn, 238 F.Supp.2d at 150 ("Dr. Merino stated . . . that she believed that [Dr. Devenport] could handle treatment of a patient experiencing sickle cell crisis."). Notwithstanding the degree of concern Dr. Miodovnik expressed in his pretrial deposition about the risk to Mrs. Abdul-Haqq posed by the planned vaginal delivery, and his concession that such a procedure violated the standard of care, the record supports that he acquiesced and recommended antibiotics for a proposed vaginal delivery that he knew to be contraindicated with, at best, a recommendation that the nurse-midwife (who had theretofore been unsuccessful) should "reiterate" the risks to the patient. See Lownsbury, 762 N.E.2d at 362 (finding that a physician may consent to a physician-patient relationship by taking certain actions, "such as examining, diagnosing, treating, or prescribing treatment for the patient").

It is undisputed that after the March 21st consultation with Dr. Miodovnik none of the nurse-midwives at DCBC impressed on Mrs. Abdul-Haqq that she was not a candidate for a vaginal delivery and urged her to have the caesarean section that, it is agreed, was the medically recommended course in her case. 2. Policy or Protocol for Consultation

Another significant element in the duty analysis is whether there was a "policy or protocol" requiring the consultation that did, in fact, occur. Newborn, 238 F.Supp.2d at 150. In Newborn, the German doctors who were the primary care physicians sometimes contacted various doctors at both German and U.S. military hospitals for general advice, but there was "no written or informal agreement for them to do so." Id. Unlike in Newborn, the consultation between Dr. Miodovnik and Nurse-Midwife Alexander, was not "informal," 238 F.Supp.2d at 149, but occurred in the course of an established ongoing contractual relationship between Dr. Miodovnik and DCBC. There are two written Memoranda of Understanding with DCBC, both signed by Dr. Miodovnik, who chairs the Department of Obstetrics and Gynecology at WHC. Under one of the agreements, Dr. Miodovnik is designated to serve as "Director of Medical Affairs" of the DCBC. The other agreement provides for "Ob/Gyn Consultation for Pregnancies and Well-Women for the [DCBC]."

The agreement for consulting services requires Dr. Miodovnik (or his designee) to "[p]rovide 24 hour consultation services to the nurse-midwives of the DCBC each day of the twelve months of the year." Specifically, the MOU provides that the DCBC would "[r]equest review and evaluation of specific client medical records," and "consult with the consulting obstetrician [Dr. Miodovnik or his designee] . . . on any deviations from normal as outlined in the guidelines." Dr. Miodovnik correspondingly agreed to "[r]eview and evaluate specific client medical records," "[p]rovide . . . consultation services to the nurse-midwives of the DCBC," and "[a]ccept the transfer and medical management or recommend transfer . . . of any client who develops complications at any time." According to Nurse-Midwife Alexander, the DCBC nurse-midwives did not merely seek Dr. Miodovnik's casual opinion, but on a "routine" basis, at a given point in every DCBC's patient's pregnancy, they would "present the patient to him and then ask him for an assessment and plan on the patient." Dr. Miodovnik not only had a responsibility and practice to review the DCBC patients' medical charts when presented to him, but, as already discussed, he in fact reviewed and made notations in Mrs. Abdul-Haqq's chart and noted that she would need antibiotics for her pro' posed vaginal delivery. Dr. Miodovnik's formal contractual relationship with DCBC and his involvement in Mrs. Abdul-Haqq's treatment, as part of an established practice of regular consultation, support the existence of a legal duty. See Corbet, 980 S.W.2d at 169 ("Where the consultant physician does not physically examine or bill the patient, a physician-patient relationship can still arise where the physician is contractually obligated to provide assistance in the patient's diagnosis or treatment and does so."). That is not to say that the contractual relationship alone gives rise to a duty between Dr. Miodovnik and all DCBC patients. However, when, as here, a consulting physician acts under a contract to consult with a primary care provider regarding a specific patient, and the consulting physician "take[s] . . . `affirmative action' . . . to participate in the care and treatment of [a] patient[]," a duty will arise. See Sterling, 802 A.2d at 455; cf. Oja, 581 N.W.2d at 743 ("[C]onsent to a physician-patient relationship may be found only where a physician has done something, such as participate in the patient's diagnosis and treatment, that supports the implication that she consented to a physician-patient relationship.").

Having determined the legal question whether the defendant owed the plaintiff a duty, see Settles, 797 A.2d at 695, I agree that Dr. Miodovnik's responsibility may be limited to the discrete tasks assigned to him by the MOU. See In re Sealed Case, 314 U.S.App. D.C. at 276, 67 F.3d at 970 (noting that the standard of care owed by a consulting physician extends "only to the careful performance of the duties outlined by the contractual agreement"). In affirming summary judgment on the basis that Dr. Miodovnik had "no duty to intervene," the majority relies on cases that acknowledged or assumed that the consulting doctors did have a duty to the patient, but only in "some circumstances." See ante page 990 note 6. These cases do not support summary judgment in this case, however, because there the plaintiffs did not allege that the defendants were negligent within those limited circumstances. See id., 314 U.S.App. D.C. at 275, 67 F.3d at 969 ("Consultant had only the duty toward the Doctor, and arguably to [the patient], to use that level of skill expected of a part-time consultant whose discrete task is to review a particular set of test results ordered by the primary physician of a patient with whom the consultant has no independent relationship. [Plaintiff] does not allege that Consultant misread the six pages of results he reviewed, nor that he failed to inquire into or diagnose any underlying medical problem that he should have suspected based on those six pages."); Dodd-Anderson v. Henderson, No. 92-1015-MLB, 1997 WL 60743, at *3 (10th Cir. Feb. 13, 1997) (unpublished) ("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.").

In this case, however, where appellants have claimed that Dr. Miodovnik was negligent in the performance of his duties under the contract in rendering consulting services to DCBC, it is for the jury to determine, after considering the contracts and hearing relevant expert testimony on the standard of care, whether Dr. Miodovnik's actions met the standard of "reasonable care" under the circumstances. Even so, the majority essentially rules that, notwithstanding the fact that expert testimony on the standard of care has not yet been developed, Dr. Miodovnik met what ever was required of him under the contract and pursuant to his responsibility as Medical Director of DCBC. That is a determination of the ultimate issue of liability, not whether a duty exists, and is premature.

3. The Lack of Compensation and Absence of Direct Physician-Patient Contact

The trial court was influenced by the fact that Dr. Miodovnik served as DCBC's Director of Medical Affairs without specific compensation, and that he consulted with the nurse-midwives, but did not meet, see, or speak directly with the patient, who was unaware of his involvement in her treatment plan. Courts have found that a physician may still incur a legal duty towards a patient "although his services are performed gratuitously." See Wilson, 894 So.2d at 634 (quoting Wilson v. Teng, 786 So.2d 485, 499 (Ala. 2000)); see also Cogswell, 249 A.D.2d at 865, 672 N.Y.S.2d 460 (denying consulting physician's motion for summary judgment, despite the fact that he did not receive payment for his courtesy consultation). Moreover, it is important to bear in mind that Dr. Miodovnik's involvement was not that of a "good Samaritan" or weekend pro bono volunteer. Rather, it is reasonable to assume that he undertook the considerable consulting responsibility to DCBC called for in the contract as part of his duties as Chair of WHC's Department of Obstetrics and Gynecology, to which DCBC patients were routinely referred. Therefore, Dr. Miodovnik's position as DCBC's Medical Director and consulting physician provided at least an indirect financial benefit to his employer, WHC. As an example, Mrs. Abdul-Haqq was charged by WHC for the obstetrical and related services rendered to her during childbirth. Further, the MOU expressly provides that Dr. Miodovnik is to "bill directly for the care provided" to DCBC patients who develop complications.

As already discussed, a traditional doctor-patient relationship is not necessarily a requirement for a legal duty to exist. Similarly, courts have acknowledged that a traditional doctor-patient relationship may exist even where the doctor has not had direct contact with the patient. See Sterling, 802 A.2d at 446-449 (citing cases), 455 ("In the final analysis, we take it as well-settled that a physician-patient relationship may arise by implication where the doctor takes affirmative action to participate in the care and treatment of a patient. An `on-call' physician may be in the position to direct the care of a patient whom he has never seen, so that his or her instructions are followed, the results of which are manifest in the ensuing course of the patient's treatment.") When a contractual obligation exists, and there is actual consultation with respect to a particular patient, the lack of direct contact between the consulting physician and patient is not determinative. See Corbet, 980 S.W.2d at 169 ("Where the consultant physician does not physically examine or bill the patient, a physician-patient relationship can still arise where the physician is contractually obligated to provide assistance in the patient's diagnosis or treatment and does so.").

Whether a consulting doctor is compensated and has direct contact with a patient may be relevant in elucidating the relationship between the consulting doctor and the primary health provider, whether the consultation is casual or formal, and whether it is expected that the consulted physician's advice will be followed. In this case, however, the lack of specific compensation to Dr. Miodovnik and the absence of direct patient contact say less about the relationship between Dr. Miodovnik and DCBC than do the express terms of the contract for consulting services and the testimony of Dr. Miodovnik and the nurse-midwives about the working relationship they had established and their actual consultation with respect to Mrs. Abdul-Haqq's treatment plan in particular.

IV. Public Policy Considerations

A. The Independence of the Licensed Nurse-Midwives

The trial court was influenced by the fact that, in the District of Columbia, nurse-midwives "are qualified to assume primary responsibility for the care of their patients," and may exercise "independent judgment" in patient management. See 17 DCMR § 5800.1 (2002). Similarly, the majority goes to great lengths to demonstrate that the "Council of the District of Columbia has recognized the independence of nurse-midwives," who "may perform actions of nursing diagnosis and nursing treatment of alterations of the health status," and "are qualified to assume primary responsibility for the care of their patients." See ante pages 989 (quoting D.C. Code § 3-1201.02(2) (2001); DCMR § 5800.1 (2002)). Based on the nurse-midwives' professional status, the majority concludes that "[t]he nurse-midwives at the DCBC were independent practitioners fully qualified to act in these circumstances." See ante page 994.

The nurse-midwives' professional licensing and qualifications as well as their ability to practice independently within the scope of the activities permitted by their license are not in dispute. While relevant, however, they are not dispositive of whether Dr. Miodovnik owed a duty to the patient on the facts of this case. That this is so is made clear by the cases discussed above where the courts have considered whether a consulting doctor should be held to have a duty to the patient of a primary full-fledged physician, whose professional independence is similarly not in doubt. As already discussed, what is most relevant to the question of duty are Dr. Miodovnik's contractual obligation to DCBC, his established consulting relationship with the DCBC nurse-midwives, and his actual collaboration with the nurse-midwives in the care and supervision of Mrs. Abdul-Haqq's treatment during pregnancy in preparation for delivery. In this case, the record shows that even though licensed and legally authorized to act independently, the nurse-midwives did not retain complete control of Mrs. Abdul-Haqq's treatment and that they sought and followed Dr. Miodovnik's recommendations on her treatment plan as a matter of fact. To recognize that Dr. Miodovnik owed a duty to Mrs. Abdul-Haqq in the circumstances of this case in no way threatens the standing of the nurse-midwives who indisputably themselves also owed a duty of reasonable care to her. To conclude otherwise would base the duty analysis on a bare reading of what the licensing statute allows nurse-midwives to do, instead of on the facts of the particular case.

Similarly, I also do not think that there is reason for the trial court's expressed concern that if a duty were to be imposed on a consulting physician, "no specialist would undertake to advise a primary care physician who is uncertain about how to deal with a crisis, regardless of how impartial or unofficial her professional relationship with the primary ca[r]e physician was and regardless of how infrequent or insubstantial the advice." (quoting Newborn, 238 F.Supp.2d at 150). The facts in this case, however, are that Dr. Miodovnik's consultation was neither informal nor insubstantial, but undertaken as part of his duties as the DCBC's Medical Director pursuant to a contractual obligation to provide consulting services, which he did on a regular basis. The analysis I have undertaken is consistent with the approach taken by the ACOG Committee on Ethics Opinion, Seeking and Giving Consultation, cited by amici curiae (American College of Nurse-Midwives and American Association of Birth Centers), which recognizes several levels of interaction between nurse-midwives and physicians in ascending order: from "professional dialogue" to three levels of "formal" consultation, which in turn range from a "single-visit consultation" to "continuing collaborative care" to "transfer of primary clinical responsibility." ACOG Committee on Ethics, ACOG Committee Opinion, Seeking and Giving Consultation, No. 365, May 2007, at 1-2 [hereinafter ACOG Ethics Opinion]. Where in that spectrum the consultation at issue in this case falls is a subject for expert testimony, but there is evidence to suggest that the consultation had between Dr. Miodovnik and Nurse-Midwife Alexander was not, as amici suggest, at the least-involved end of the spectrum of "professional dialogue" which "does not constitute a formal consultation or establish a patient-consultant relationship." See id. at 1. According to the ACOG Ethics Opinion, "professional dialogue" occurs in situations where "clinicians share their opinions and knowledge" and the consulted clinician is "asked a simple question and he or she does not talk with or examine the patient" and "does not make an entry in the patient's medical record." Id. Here, Dr. Miodovnik was not asked "a simple question" but asked for an "assessment and plan" for the patient, and he did make an entry on Mrs. Abdul-Haqq's medical chart.

Amici express a concern that to recognize the duty of a consulting physician to the patients of nurse-midwives would adversely affect access to quality care because it would "diminish the willingness of OBs to consult with midwives." Just as I do not question the professional independence and qualifications of nurse-midwives, I have no reason to doubt that they provide an important and welcome addition to the range of obstetrical and gynecological services available to women. But this argument goes too far, for it implicitly proposes that a special regime of legal liability should be devised to shield doctors who consult with nurse-midwives. As the majority notes, the legislature "has not spoken directly to the issues before us." See ante page 990. In a field as comprehensively defined and regulated as is the practice of nurse-midwifery in the District of Columbia, which we are told is "in the forefront in developing midwifery practice laws and regulations," it is particularly appropriate that any public policy-based exception to the usual rule of legal liability should come from the legislature and not be devised by the courts. An important part of any decision based on public policy would take into account that, according to amici, a high proportion (70%) of these patients are "considered vulnerable by virtue of their age, education, socioeconomic status, ethnicity or location of residence . . . . [and that] over one-third of [certified nurse-midwife] clients reside in areas where a higher-than-average number of people are living below the poverty level." A legislative body could gather the information necessary and has the procedures to evaluate competing considerations in a field as fraught with trade-offs in the allocation of resources and costs as health care. I see no reason, however, why these patients should as a matter of law be entitled to less accountability from a consulting physician than a patient who is able to pay full fare to a physician who similarly consults with another physician.

B. The Autonomy of Pregnant Patients

Finally, it is important to weigh the argument made by amici that to impose a duty on a consulting physician such as Dr. Miodovnik and hold him responsible for providing proper medical advice compromises "the legal autonomy of pregnant women [who are] fully competent to assume whatever risks a particular type of delivery — vaginal, caesarean, VBAC — might entail." As the majority points out, neither Dr. Miodovnik nor the nurse-midwives could have forced Mrs. Abdul-Haqq to undergo a caesarean section if she did not want it. But we may not assume that comprehensive informed consent was obtained from Mrs. Abdul-Haqq in this case simply because she signed the DCBC consent form early in her pregnancy. In essence, her claim is that she was not given proper medical advice, and therefore was not able to decide for herself on an informed basis. Mrs. Abdul-Haqq testified that she had understood the risk of uterine rupture was "slight," and Nurse-Midwife Alexander confirmed that after the VBAC consent form was signed early in the pregnancy there was no further discussion of the risks with her. The record bears that out, for when Dr. Leslie told Mrs. Abdul-Haqq at the hospital that a caesarean section was indicated in her case because of the risks posed by attempting a vaginal delivery in light of her medical history, Mrs. Abdul-Haqq readily agreed to a caesarean section after obtaining assurance from Dr. Leslie that her bladder would be protected from injury. Such advice, had it been given timely, likely would have averted the tragedy in this case. A pregnant woman's legal autonomy to make her own decisions, including her right to assume a calculated risk, is only as good as the information she is provided about the risks attendant to the options available to her.

* * *

As we have noted, whether a common law duty exists in a particular situation is, in the last analysis, a policy determination. See Bd. Of Trustees of the Univ. of the District of Columbia v. DiSalvo, 974 A.2d 868, 871 n. 2 (D.C. 2009) ("The existence of a duty is also shaped by considerations of fairness and `results ultimately from policy decisions made by the courts and the legislatures.'" (quoting Williams, 572 A.2d at 1064)). In this case policy grounded on legal principles favors a determination that Dr. Miodovnik had a legal duty to Mrs. Abdul-Haqq, and public policy considerations also support it. To hold otherwise on the facts presented here, where there was both a contractual obligation and a practice of regular consultation with a doctor who had superior knowledge and experience in the matter consulted, and where the doctor actually consulted with respect to a particular patient, would imply that under District of Columbia law there is no duty for a consulting physician to render appropriate advice simply because the patient is primarily being treated by another primary care giver.

For all the foregoing reasons, I would reverse the grant of summary judgment and, having recognized that a legal duty was owed, remand the case for further proceedings.