Eelbode V. Chec Medical Center

Norbert Eelbode appeals a summary Judgement dismissing his medical malpractice complaint against a physical therapist who conducted a pre-employment physical. In granting summary Judgement, the trial court ruled that there was no physician-patient relationship between Eelbode and the therapist, and alternatively, Eelbode, by signing a waiver, assumed the risk of injury in the lifting test given during the physical. Additionally, Chec Medical Centers contends that Eelbode failed to set forth by affidavit sufficient facts to support his claim of medical malpractice. We hold that, although marginal, Eelbode's documents in opposition to summary Judgement did create issues of fact; that Chec's physical therapist owed a duty not to harm Eelbode during the physical although no physician-patient relationship existed; and that the waiver does not bar Eelbode's claim. Accordingly, we reverse and remand.