In most cases of medical negligence or malpractice a physician's duty to a patient is derived from the physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App.E.D. 1993). However, when the physician's allegedly negligent acts or omissions do not involve a matter of medical science, a duty may also exist when public policy favors the recognition of a duty or when the harm is particularly foreseeable.

In most cases of medical negligence or malpractice a physician's duty to a patient is derived from the physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App.E.D. 1993). However, when the physician's allegedly negligent acts or omissions do not involve a matter of medical science, a duty may also exist when public policy favors the recognition of a duty or when the harm is particularly foreseeable.

In order to maintain a medical malpractice action against a doctor, a plaintiff must first establish a physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App. 1993). This relationship gives rise to the duty of care.

Affidavits filed the day of the summary judgment hearing or thereafter cannot be considered. Richardson v. Rohrbaugh, 857 S.W.2d 415, 418 (Mo.App.E.D. 1993); Rule 74.04(c). Therefore, this affidavit cannot be considered with respect to the summary judgment in favor of McCarthy.

It appears that plaintiff is attempting to recover damages for injuries allegedly sustained by her son in connection with an alleged diagnosis of cerebral palsy and failure to properly medically treat her son based upon an alleged diagnosis of cerebral palsy. As a matter of Missouri law, plaintiff cannot maintain a cause of action for medical malpractice against defendant St. Louis Children's Hospital arising out of the care and treatment of her son. See,Asaro v. Cardinal Glennon Memorial Hospital, 799 S.W.2d. 595, 600 (Mo. 1990); Richardson v. Rohrbaugh, 857 S.W.2d. 415, 417-18 (Mo.App. 1993). Nowhere in plaintiff's complaint does she allege that at any time she was a patient at St. Louis Children's Hospital and/or that her claims pertain to any medical treatment rendered to her.

A party may file a late affidavit only with leave of the court. Richardson v. Rohrbaugh , 857 S.W.2d 415, 418 (Mo. Ct. App. 1993). Montana

See Safer v. Estate of Pack, 291 N.J.Super. 619, 677 A.2d 1188 (N.J.Super.Ct.App.Div. 1996) (noting that the trial court found that a daughter, who was diagnosed with the same genetically-linked cancer as her father, sued her father's physician for failure to warn that his immediate family may have inherited the disease, was not a "patient" for purposes of medical malpractice); Pate v. Threlkel, 661 So.2d 278 (Fla. 1995) (The plaintiff was diagnosed with the same genetically-linked cancer as her mother and subsequently sued her mother's physicians for failure to notify her mother that her children should be tested for the disease. The Florida Supreme Court noted that the trial court found that the plaintiff was not a "patient" for purposes of medical malpractice.); Richardson v. Rohrbaugh, 857 S.W.2d 415 (Mo.Ct.App. 1993) (A "family physician" was treating the plaintiffs' eldest child and misdiagnosed the child as not having a genetic disorder. After the mother subsequently became pregnant and gave birth to another child with the same disorder, she brought suit.

That case was against an individual physician and the issue was the propriety of the entry of summary judgment. As stated in Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-418 (Mo.App.E.D. 1993), "[i]n order to maintain a cause of action in tort against a doctor, appellants must first establish a physician/patient relationship." "A physician's liability to a patient is predicated on the existence of a physician-patient relationship.

In most cases of medical negligence or malpractice a physician's duty to a patient is derived from the physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App.E.D. 1993). However, when the physician's allegedly negligent acts or omissions do not involve a matter of medical science, a duty may also exist when public policy favors the recognition of a duty or when the harm is particularly foreseeable.

Such a relationship is the physician-patient relationship. Richardson v. Rohrbaugh , 857 S.W.2d 415, 418 (Mo.App. 1993). Thus, as the respondent argued in its motion for summary judgment, absent the appellant's being able to establish that a physician-patient relationship existed between her and the respondent's medical staff, the respondent, as a matter of law, did not owe her a duty of care on which to base a medical malpractice claim against it for damages.