Defendants move for summary judgment. Plaintiff has responded with a motion to dismiss her claims with prejudice.

Plaintiff was treated by the defendant doctors at their clinic. Pursuant to a weekend telephone call to one of the defendants at his home the doctor telephoned a pharmacy and prescribed a pain medication for plaintiff. Over two years later plaintiff allegedly took the last of the prescribed pills later tested positive for drug use at work and eventually suffered negative consequences including the loss of her job. The defendants had no record of the telephone prescription and one of the doctors refused to call the employer of plaintiff and verify the prescription or the fact that he may have prescribed the controlled substance. Plaintiff filed this action alleging that the doctors breached a duty to keep records and a duty to call her employer.

The existence of an obligation or duty on the part of a doctor is a question of law while the breach of a duty is a question of fact. Green v. Walker 910 F.2d 291 (5th Cir.1990). Defendants correctly assert that there is no duty imposed by law on a doctor to record all prescriptions or to speak to the employer of a patient. Plaintiff concedes as much by her response to the motion for summary judgment. A summary judgment is appropriate.

The motion to dismiss comes after the answer was filed and without a stipulation of dismissal by the parties and therefore comes within Fed.R.Civ.P. Rule 41(a)(2) and the action "shall not be dismissed at plaintiff's instance save upon such terms and conditions as Court deems proper." Court will enter judgment in this matter for defendants dismissing the action at the cost of plaintiff. The motion to dismiss is DENIED and the motion for summary judgment is GRANTED.

New Orleans Louisiana this 2nd day of July 1996.

Patrick E. Carr

UNITED STATES DISTRICT Court