S058268, Opinion — Mead v. Legacy Health System

267
267
Argued and submitted February 9, 2011, decision of Court of Appeals affirmed in
part and reversed in part; judgment of circuit court reversed, and case remanded
to circuit court for further proceedings July 26, 2012
Cynthia Lynn MEAD,
Respondent on Review,
v.
LEGACY HEALTH SYSTEM,
an Oregon corporation;
Legacy Good Samaritan Hospital and Medical Center,
an Oregon corporation;
and Hubert Leonard, M.D.,
Defendants,
and
David ADLER, M.D.,
Petitioner on Review.
(CC 0402-01947; CA A130969; SC S058268)
283 P3d 904
Defendant was serving as the on-call neurosurgeon when he received a
telephone call from an emergency room resident asking him whether a patient
(plaintiff) who had come into the emergency room needed to be seen by a
neurosurgeon. Based on what the resident told him, defendant advised the resident
to admit plaintiff for pain management. When it later turned out that plaintiff had
a neurosurgical problem and when plaintiff suffered damages from the delay in
diagnosing that problem, she sued defendant, among others, for malpractice. At
trial, the parties agreed that defendant’s liability to plaintiff turned initially on
whether, as a result of the resident’s call to defendant, defendant entered into a
physician-patient relationship with plaintiff. The trial court ruled that there was
sufficient evidence to submit that issue to the jury and instructed the jury that,
among other possibilities, it could conclude that a physician-patient relationship
arose in this case if defendant’s advice showed an intent to participate in plaintiff’s
care. The jury returned a verdict in defendant’s favor on the physician-patient
relationship issue. The Court of Appeals reversed, holding that the trial court
should have directed a verdict in plaintiff’s favor on that issue. Held: (1) When a
physician has not personally examined a patient, a physician-patient relationship
arises when the physician knows or reasonably should know that he or she is
diagnosing a patient’s condition or treating the patient. Not every expression of an
opinion about a patient’s condition constitutes a diagnosis. Among other things, that
issue will turn on the customary practice within the relevant medical community,
the degree and the level of formality with which one physician has assumed (or
the other physician has ceded) responsibility for the diagnosis or treatment, the
relative expertise of the two physicians, and the reasonable expectations, if any, of
the patient under the circumstances. In this case, evidence in the record permitted
the jury to conclude that that standard had not been met, and the trial court
therefore properly denied plaintiff’s motion for a directed verdict. (2) The trial

268 	Mead v. Legacy Health System
court’s instruction requiring the jury to find intent on the part of defendant to
participate in plaintiff’s care required too much. It is sufficient if defendant knew
or reasonably should have known that he was diagnosing or treating plaintiff.
That instructional error was prejudicial and required reversal.
The decision of the Court of Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.
En Banc
On review from the Court of Appeals.*
Michael T. Stone and Larry A. Brisbee, Brisbee & Stockton
LLC, Hillsboro, argued the cause for petitioner on review.
Michael T. Stone filed the briefs.
Maureen Leonard, Portland, argued the cause and filed
the briefs for respondent on review.
Andrew M. Schlesinger, Lake Oswego, filed the brief for
amicus curiae Oregon Trial Lawyers Association.
KISTLER, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
De Muniz, J., concurred and filed an opinion.
Walters, J., dissented and filed an opinion.
______________
* Appeal from Multnomah County Circuit Court, Janice Wilson, Judge. 231 Or
App 451, 220 P3d 118 (2009).

Cite as 352 Or 267 (2012) 	269
KISTLER, J.
An emergency room doctor telephoned defendant
(an on-call neurosurgeon) to ask his advice about plaintiff,
who had come into the emergency room for treatment.
When 	plaintiff 	later 	sued 	defendant 	for 	malpractice,
the jury returned a verdict in defendant’s favor; the jury
found that defendant was not acting as plaintiff’s doctor
and, as a result, owed her no duty. The Court of Appeals
reversed, holding that the trial court should have directed
a verdict in plaintiff’s favor on that issue. Mead v. Legacy
Health System, 231 Or App 451, 464, 220 P3d 118 (2009).
We allowed defendant’s petition for review to consider that
issue. Because we conclude that, on this record, the jury
could find that defendant was not acting as plaintiff’s doctor,
we uphold the trial court’s ruling denying plaintiff’s motion
for a directed verdict. We also conclude, however, that the
trial court erred in instructing the jury and, for that reason,
agree that the case must be remanded for a new trial.1
The relevant facts can be summarized briefly. 2 On
July 1, 2002, defendant was the on-call neurosurgeon for
Legacy Good Samaritan and Legacy Emanuel Hospitals.
That day, defendant received a telephone call from a male
resident, asking for advice about a patient who had come
into the emergency room. The resident told defendant that
“they had a patient who [had come into the emergency room
who] had bad back pain, who was neurologically intact, who
had [an] MRI with a disk bulge and who had normal rectal
tone.”
1 The Court of Appeals decision “[r]eversed [the trial court’s judgment] and
remanded for [a] new trial with instructions to provide [a] peremptory instruction
to [the] jury on the existence of a physician-patient relationship.” Mead, 231 Or
App at 468. Although we agree with the Court of Appeals that the judgment must
be reversed and the case remanded for a new trial, we disagree with its direction
to give a peremptory instruction on remand. For that reason, we affirm the Court
of Appeals decision in part and reverse it in part.
2 Because the jury found that defendant had not entered into a physician-
patient relationship with plaintiff, we state the facts consistently with that finding.
See Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or 304, 310, 39 P3d 846
(2002) (explaining that, when a jury has returned a verdict in favor of a party, we
must “uphold the jury’s verdict, unless our review of the record reveals that there
is no evidence from which the jury could have found the facts” necessary to sustain
its verdict).

270 	Mead v. Legacy Health System
Defendant understood that the resident was “ask[ing] for
[his] advice * * * to determine at this time whether the
patient needs to be seen by a neurosurgeon,” and defendant’s
advice was “to admit the patient to the medical service for
pain management.” Defendant testified at trial that, based
on the information that the resident had provided him, he
concluded that the patient did not need neurosurgery at that
time—a conclusion that was implicit in his advice to admit
the patient for pain management. The resident did not ask
defendant to see the patient, and defendant testified that
he did not “do anything or say anything to communicate to
the resident that [he was] somehow going to embark and
become involved in the treatment of this patient[.]”
Consistently 	with 	his 	statement 	that 	he 	did
not do or say anything to become involved in plaintiff’s
treatment, defendant did not admit plaintiff to the hospital
under his care. Rather, plaintiff’s primary care physician,
Dr. Kisor, admitted plaintiff to the hospital under her
care. (At Legacy, the physician who admits a patient to
the hospital is responsible for the patient’s care.) Later
that day, plaintiff’s condition worsened, and Kisor asked
a neurologist, Dr. Leonard, for his assistance. Leonard
previously had treated plaintiff for migraine headaches, and
he consulted with Kisor to determine the cause of plaintiff’s
worsening condition. Their attempts to determine the cause
of plaintiff’s condition were not successful, and her condition
continued to deteriorate over the next few days.
On July 4, Kisor’s nurse called defendant to ask
if he would see plaintiff. The nurse did not say that the
request was urgent, and defendant asked the nurse to
have Kisor call him. Defendant did so for two reasons. As a
general matter, when asked to see another doctor’s patient,
defendant’s practice is to speak with the doctor first so that
he can ask the doctor questions about the patient’s condition.
Additionally, and specific to this case, Kisor’s nurse told
defendant that Kisor was concerned that plaintiff might
have a conversion disorder. Because a conversion disorder
is a psychological condition that neurosurgeons ordinarily
do not treat, defendant did not understand why Kisor would
ask for his help with that problem and wanted to speak with
her before seeing plaintiff.

Cite as 352 Or 267 (2012) 	271
Kisor called defendant on July 5. After talking with
her, defendant saw plaintiff that day. On examining plaintiff,
defendant 	diagnosed 	plaintiff 	as 	suffering 	from 	cauda
equina syndrome; specifically, defendant concluded that the
MRI taken on July 1 showed that plaintiff had a herniated
disk, not a disk bulge as the resident had reported. He also
concluded from his review of the MRI and his examination of
plaintiff that pulp from the center of the herniated disk had
escaped and was pressing on a sheath of nerves (the cauda
equina) that govern a person’s ability to move their legs and
to control their bladder and bowel functions. 	Defendant
operated immediately to remove the pressure. The operation
was successful. However, the delay between the onset of the
pressure and its removal resulted in substantial damage to
the nerves governing plaintiff’s ability to control her legs
and her bladder and bowel functions.
As a result of that damage, plaintiff filed an action
against Legacy for the negligence of its employees and also
against Leonard.3 Later, plaintiff filed a second amended
complaint, adding defendant and alleging that he had
negligently failed to “timely diagnose, treat and care for
plaintiff’s low back condition,” “timely examine plaintiff,”
“timely review plaintiff’s MRI,” and “timely respond to
requests for consultation regarding plaintiff’s low back
condition.” Plaintiff’s claim against defendant rested on the
premise that, as a result of the telephone call defendant
received on July 1, defendant had entered into a physician-
patient relationship with plaintiff and, as a result, owed her
a duty of due care. Plaintiff acknowledged that, if defendant
did not enter into a physician-patient relationship with
her until Kisor called him on July 5, then she had no claim
against him.
Approximately three weeks before the trial began,
plaintiff entered into covenants with Legacy and Leonard
not to execute on any judgment against them in return for
a payment of $4 million. The agreements provided that, if
plaintiff recovered more than $3 million from defendant, she
3 Plaintiff’s claim against Legacy focused on two of its employees—her
primary care doctor, Kisor, and an emergency room doctor, Dr. Zigler. (Zigler was
not the male resident who had called defendant.) Defendant was not an employee
of Legacy, nor was Leonard.

272 	Mead v. Legacy Health System
would return $100,000 each to Legacy and Leonard. Although
the covenants contemplated that Legacy and Leonard would
remain as defendants in plaintiff’s action and participate as
such at trial, the trial court ruled that, as result of entering
into the covenants, no justiciable controversy remained
among 	plaintiff, 	Legacy, 	and 	Leonard. 	Accordingly, 	it
dismissed both Legacy and Leonard as defendants.
The case went forward solely against defendant.
One of the issues at trial was whether defendant had
entered into a physician-patient relationship with plaintiff
on July 1. Both sides offered expert testimony on that
issue, and each side’s expert based his opinion on different
testimony regarding what had happened that day. To help
put the experts’ testimony in perspective, we briefly discuss
a factual dispute that informs each expert’s opinion.
As noted, defendant testified that, on July 1, he had
received a telephone call from a male resident working in
the emergency room and that the male resident had told
him the information quoted earlier in this opinion. An
emergency room doctor, Aviva Zigler, had examined plaintiff
when she came to the emergency room. Zigler testified that,
after examining plaintiff, she had called defendant on July 1
and had spoken to him personally. According to Zigler, she
told defendant more (and sometimes different) information
about plaintiff than the male resident had told him. Zigler
also testified that, although she had not explicitly asked
defendant to see plaintiff, she believed that that request
was implicit in her calling him in the first place. Defendant,
for his part, testified that he had not spoken with Zigler but
had received a call from a male resident.
With that background in mind, we turn to the
experts’ opinions as to whether defendant entered into a
physician-patient relationship with plaintiff on July 1 as
a result of a call either from the male resident or Zigler.
Dr. Hacker, a neurosurgeon, testified as an expert witness
on behalf of defendant. When asked whether, “[i]n your
judgment and based upon your training and experience,
was 	there 	a 	physician-patient 	relationship 	between
[defendant] and [plaintiff] over the period [from] July 1 until
[defendant] saw her on July 5,” Hacker replied, “I didn’t

Cite as 352 Or 267 (2012) 	273
see a doctor-patient interaction or relationship [between
defendant and plaintiff] until * * * July 5.”4
Hacker explained that an on-call physician will have
an obligation to see and provide medical services to another
doctor’s patient in two situations. The first situation occurs
when the emergency room physician or another doctor asks
the on-call physician for a consultation or, more colloquially,
to see the patient. As Hacker explained,
“[A] consultation is very simply obtained. Somebody over
the phone will say to me, ‘[doctor], I want you to see my
patient’ or ‘[doctor], I want you to see this patient.’ And
that’s in some regard, when I’m on-call for the emergency
room or when I’m in a hospital where I have privileges, it’s
stipulated by the by-laws that I am then obligated to help
out. There is no saying, ‘Well, I can’t do this’ or ‘I won’t do
that.’ The minute the doctor says, ‘[doctor], I want you to see
this patient,’ the answer is, ‘Yes, I’ll be happy to.’ And that’s
always the answer because that’s the rules.”
The second situation occurs, according to Hacker, if “the
[on-call] physician had enough information on his [or her]
own to conclude this is a patient that I should see.” According
to Hacker, in both situations, an on-call physician will have
an obligation to see and treat another doctor’s patient.
Regarding the first situation that Hacker identified,
defendant testified that the resident with whom he spoke
did not ask him to see plaintiff or provide medical services
to her. According to defendant, the resident asked for
advice only as to whether the patient needed to be seen
by a neurosurgeon. Regarding the second situation, there
was evidence from which the jury could have found that the
information defendant received from the resident would not
have put a reasonable neurosurgeon on notice that “this is
a patient [whom he] should see.” Specifically, the jury could
have found that the information that defendant received
from the resident omitted three critical facts that would
have alerted a reasonable neurosurgeon that plaintiff could
have cauda equina syndrome instead of common back pain.5
4 As noted, plaintiff does not dispute that, if a physician-patient relationship
did not exist until July 5, she has no claim against defendant.
5 The jury could have found the following three omissions: First, the resident
described the patient’s disk problem as a disk bulge rather than a disk herniation.

274 	Mead v. Legacy Health System
Plaintiff’s expert, Dr. Kendrick, agreed, in part,
with defendant’s expert. For example, Kendrick testified on
direct examination:
“[W]hen a neurosurgeon is on call for * * * a hospital, and
receives a call from an emergency room doctor, a certain
obligation is developed. And we as neurosurgeons, when we
are on call and get such a call, have to respond, first of all.
And if we’re asked to see a patient, then we’re obligated to
undertake the care of that patient and a physician-patient
relationship is established per se by the ER physician
asking us to see someone.”
Consistently with his testimony on direct examination,
Kendrick agreed on cross-examination that the “thresh-
old issue, so to speak, [for establishing a physician-patient
relationship] is [whether] the emergency room physician
request[s] a neurosurgical consultation with [defendant].”
Kendrick also testified, as Hacker had, that, if the emergency
room physician described sufficient symptoms of a neuro-
surgical condition, an on-call neurosurgeon would have an
obligation to examine the patient and thus undertake the
patient’s care.
Kendrick agreed that the emergency room physician
had not expressly asked defendant to see plaintiff. However,
he opined that, in effect, the “emergency room physician
was 	requesting 	that 	[defendant] 	become 	involved 	in
[plaintiff’s] care.” He also concluded that the symptoms that
the emergency room physician identified were sufficient to
require defendant to see and examine plaintiff. It is worth
noting that, when Kendrick referred to the “emergency
room physician,” he appears to have been referring to Zigler,
who testified that she had called defendant personally on
July 1 to ask for his assistance in treating plaintiff; that is,
Kendrick’s opinion relies on and tracks Zigler’s testimony
Only the latter poses a risk of cauda equina syndrome. Second, the resident
described the patient’s rectal tone as “normal” and did not say that the patient was
not able to urinate. An inability to control bowel and urinary functions is a symptom
of cauda equina. Third, the resident described the patient as neurologically intact
and did not mention weakness or inability to move her lower limbs. Such weakness
can signal cauda equina. If the jury credited defendant’s testimony, it could have
found that the information he received depicted a person with a bad back who
should be treated conservatively and that the patient did not require the services
of a neurosurgeon at that time.

Cite as 352 Or 267 (2012) 	275
regarding the call that she supposedly made to defendant
on July 1.
Not 	only 	did 	the 	two 	experts 	reach 	different
conclusions regarding whether the facts gave rise to an
obligation on defendant’s part as the on-call neurosurgeon
to see and provide treatment to plaintiff, but each expert
appears to have based his opinion on a different set of facts.
Hacker appears to have based his opinion primarily on
defendant’s testimony, and Kendrick appears to have based
his opinion primarily on Zigler’s testimony. As noted, the
jury found that defendant had not entered into a physician-
patient relationship with defendant on July 1, and the trial
court entered judgment in defendant’s favor based on that
finding.6
The Court of Appeals reversed, holding that the only
conclusion that the jury could have reached on this record
was that a physician-patient relationship existed on July 1.
See Mead, 231 Or at 463-64. The Court of Appeals recognized
that, without a physician-patient relationship, defendant
owed no duty to plaintiff. Id. at 457. It also recognized that
the formation of that relationship is consensual and that the
parties’ consent to enter a physician-patient relationship
may be either express or implied. Id. at 458. In this case, the
Court of Appeals found that defendant impliedly consented
to enter into a physician-patient relationship from the
combination of two facts. See id. at 463-64. It concluded
that, in advising the resident to admit plaintiff for pain
management, defendant was diagnosing plaintiff. Id. at 463.
It also observed that, in doing so, defendant was acting in
his capacity as an on-call physician. It followed from those
two facts, the Court of Appeals reasoned, that defendant’s
“advice * * * was not merely casual or informal advice to a
colleague [but instead was] a diagnosis directed to a specific
patient.” Id. at 464. The Court of Appeals held that, because
defendant formally had undertaken to diagnose plaintiff, he
had entered into a physician-patient relationship with her.
Id.
6 The jury also found that defendant had not entered into a physician-patient
relationship with plaintiff on July 3, 2002. Because plaintiff has not argued on
appeal that the trial court should have directed a verdict on that issue, we have
not set out the facts regarding that issue.

276 	Mead v. Legacy Health System
On review, plaintiff commends the Court of Appeals’
reasoning to us. Alternatively, she contends that the trial
court erred in instructing the jury on when a physician-
patient 	relationship 	will 	arise 	and 	also 	in 	permitting
defendant to impeach her witnesses based on the covenants
that either they or their employer entered. We begin with
the question that the Court of Appeals decided—whether
there was any evidence in the record to support the jury’s
verdict. Regarding that question, we will “uphold the jury’s
verdict, unless our review of the record reveals that there is
no evidence from which the jury could have found the facts”
necessary to sustain its verdict. See Northwest Natural
Gas Co. v. Chase Gardens, Inc., 333 Or 304, 310, 39 P3d 846
(2002) (stating that standard).
We 	begin 	by 	setting 	out 	the 	governing 	legal
principles. In Oregon, as in most states, a physician-patient
relationship is a necessary predicate to stating a medical
malpractice claim. See Dowell v. Mossberg, 226 Or 173, 181-
83, 355 P2d 624, rev’d on reh’g on other grounds, 359 P2d
541 (1961); David W. Louisell & Harold Williams, 1 Medical
Malpractice § 8.03[1] at 8-17 (2009) (summarizing decisions
from other states). As this court recognized in Dowell,
without a physician-patient relationship, “ ‘there c[an] be no
duty to the plaintiff, and hence no liability.’ ” Dowell, 226 Or
at 181-82 (quoting Currey v. Butcher, 37 Or 380, 385, 61 P
631 (1900)).7
A physician-patient relationship may be either
express or implied. See Dowell, 226 Or at 182. In this case,
plaintiff does not contend that defendant expressly agreed
to provide medical services to her. Rather, she contends
that an implied physician-patient relationship arose when
defendant offered an opinion regarding her condition to the
emergency room resident on July 1.
7 An action for medical malpractice “antedated any fully developed theory of
negligence as a separate basis for action.” Allan H. McCoid, The Care Required
of Medical Practioners, 12 Vand L Rev 549, 551 (1954). The proposition that a
physician’s duty extends only to those persons whom he or she agrees to treat
derives from cases implying a duty on the physician’s part to “use reasonable and
ordinary care and diligence” as an incident of an agreement to provide medical
treatment. See, e.g., Leighton v. Sargent, 27 NH 460, 471 (1853) (implying a duty
to use due care and diligence as part of a contract to provide medical services to a
patient).

Cite as 352 Or 267 (2012) 	277
When a patient goes to a doctor’s office and the
doctor examines the patient, ordinarily no one disputes
that an implied agreement to provide medical care has
been formed and that consequently an implied physician-
patient relationship arises. Cf. Lyons v. Grether, 239 SE2d
103, 105 (Va 1977) (holding that an appointment for a
specific illness permitted a reasonable inference that the
defendant had agreed to provide medical services for that
illness and thus provided a basis for inferring a physician-
patient relationship). That is, we infer from the parties’
actions, considered in light of the customary practice in the
medical community, that the physician consented to provide
and the patient consented to receive medical services. Cf.
White v. Jubitz Corp., 347 Or 212, 234, 219 P3d 566 (2009)
(explaining when an implied contract to pay the costs of
medical treatment will arise).
Historically, an implied physician-patient “relation-
ship [has been] limited to physicians seen directly by the
patient; the physician-patient relationship typically does
not exist between the patient and physicians consulted
by the patient’s personal physician.” Louisell & Williams,
1 Medical Malpractice § 8.03[2][a] at 8-19 - 8-22 (footnotes
omitted). More recently, however, courts have recognized
that “[t]he fact that a physician does not deal directly
with a patient does not necessarily preclude the existence
of a physician-patient relationship.” St. John v. Pope, 901
SW2d 420, 424 (Tex 1995); see McKinney v. Schlatter, 692
NE2d 1045, 1050-51 (Ohio Ct App 1997), overruled on other
grounds by Lownsbury v. VanBuren, 762 NE2d 354, 362
(Ohio 2002) (holding that it was a question of fact for the
jury whether an on-call cardiologist who had discussed a
patient’s symptoms and test results with an emergency room
physician entered into a physician-patient relationship with
the person seeking treatment). As one court has observed,
“In light of the increasing complexity of the health care system,
in which patients routinely are diagnosed by pathologists or
radiologists or other consulting physicians who might not ever
see the patient face-to-face, it is simply unrealistic to apply
a narrow definition of the physician-patient relationship in
determining whether such a relationship exists for purposes
of a medical malpractice case.”

278 	Mead v. Legacy Health System
Kelley 	v. Middle Tennessee 	Emergency 	Physicians, 133
SW3d 587, 596 (Tenn 2004); cf. Eads v. Borman, 351 Or 729,
743-44, 277 P3d 503 (2012) (noting that changes in the way
health care is delivered affect apparent agency analysis); id.
at 759-60 (De Muniz, C. J., specially concurring) (same).
As the court recognized in Kelley, with increasing
specialization in the medical profession, hospitals or medical
groups may divide responsibility for providing medical
services among a team of physicians, with some of the
physicians responsible for performing only discrete medical
services for the patient. A radiologist, for example, may
interpret a patient’s x-rays and relay that interpretation
to the patient’s primary care physician, who uses the
radiologist’s interpretation to determine the course of the
patient’s treatment. That division of responsibility for the
patient’s care may arise as a result of custom or practice,
without a formal referral or request for consultation. Faced
with that division of services, some courts have sought
to determine when a physician who has not personally
examined a patient will enter into an implied physician-
patient relationship by asking whether the physician has
undertaken to provide a particular medical service to a
patient. In Kelley, the court explained that “a physician-
patient relationship may be implied when a physician
affirmatively undertakes to diagnose and/or treat a patient,
or 	affirmatively 	participates 	in 	such 	diagnosis 	and/or
treatment.” 133 SW3d at 596.
The standard articulated in Kelley depends, as an
initial matter, on classifying a physician’s actions as either
the “diagnosis” or the “treatment” of a patient’s condition.
Some tasks that physicians perform, such as interpreting
an x-ray, may be relatively easy to classify. Others, such as
diagnosis, may pose more difficulty. As explained below, not
every opinion that one physician offers another constitutes
a diagnosis; indeed, the same statement may be a diagnosis
when made in one context but not when made in another.
That is, the question whether a physician’s expression of an
opinion constitutes a diagnosis will vary depending on, among
other things, the customary practice within the relevant
medical community, the degree and the level of formality with
which one physician has assumed (or the other physician

Cite as 352 Or 267 (2012) 	279
has ceded) responsibility for the diagnosis or treatment, the
relative expertise of the two physicians, and the reasonable
expectations, if any, of the patient under the circumstances.
In our view, the standard should not be whether a
judge or a jury would classify a statement as a diagnosis or
the provision of treatment. Rather, it should be whether a
physician who has not personally seen a patient either knows
or reasonably should know that he or she is diagnosing a
patient’s condition or treating the patient. If the jury finds
that, in light of the factors identified above, the physician
either knew or reasonably should have known that he or
she was diagnosing the patient’s condition or providing
treatment to the patient, then an implied physician-patient
relationship exists and the physician owes the patient a
duty of reasonable care.
With that standard in mind, we turn to plaintiff’s
argument that the trial court erred in denying her motion
for a directed verdict. Her argument on that point starts
from the proposition that two facts are undisputed: (1) in
response to the resident’s telephone call on July 1, defendant
offered his opinion that plaintiff should be admitted to
the hospital for pain management and (2) in offering that
opinion, defendant was acting in his capacity as the on-call
neurosurgeon. It necessarily follows from the combination
of those two facts, plaintiff contends, that defendant was
undertaking to diagnose her condition and, in doing so,
entered into a physician-patient relationship with her.
Regarding the first fact on which plaintiff relies,
the courts consistently have held that merely providing
advice to a colleague about that colleague’s patient does not
give rise to a physician-patient relationship. See, e.g., Irvin
v. Smith, 31 P3d 934, 941 (Kan 2001); Reynolds v. Decatur
Mem’l Hosp., 660 NE2d 235, 238-39 (Ill App Ct 1996); see
also Oliver v. Brock, 342 So 2d 1, 4 (Ala 1976). That is true
even though the patient’s doctor has discussed the patient’s
symptoms and test results with another physician and the
physician has offered advice to the patient’s doctor about
the possible cause of the patient’s condition and the proper
course of treatment. See id.
The Illinois Appellate Court’s decision in Reynolds
is illustrative. In that case, the parents of a two-year-old

280 	Mead v. Legacy Health System
brought their child into the hospital emergency room.
Reynolds, 660 NE2d at 237. The child’s temperature was
102 degrees, his body was flaccid from the neck down, and
he was having difficulty breathing. Id. The parents reported
that their child had jumped off a couch and landed on his
arm. Id. The emergency room doctor called a colleague,
Dr. Fulbright, for his advice. Id. at 237 She described the
child’s symptoms to Fulbright, who testified that they
discussed potential causes for those symptoms, ranging
from child abuse to meningitis to ascending neuritis, and
“[w]e elected to proceed with the plan of [the emergency
room doctor’s] performing [a] lumbar puncture and [her]
letting me know if she needed me there.” Id.
When the child suffered severe complications, his
parents sued Fulbright for malpractice, and the Illinois
Appellate 	Court 	upheld 	a 	decision 	granting 	summary
judgment in Fulbright’s favor. See id. at 236. The court
held that Fulbright had merely offered an opinion to the
emergency room doctor about the possible causes and
treatment of the child’s condition; that act was not sufficient
to give rise to a physician-patient relationship between
Fulbright and the child. Id. at 239. The court was careful to
note the limits of its holding, however. It reasoned:
“[T]his is not a case in which Fulbright was asked to provide
a service for [the child], conduct laboratory tests, or review
test results. Fulbright did nothing more than answer an
inquiry from a colleague. * * * A doctor who gives an informal
opinion at the request of a treating physician does not owe
a duty of care to the patient whose case was discussed. * * *
This is not a case in which Fulbright had accepted a referral
of the patient. * * * Nor is this a case in which a physician
undertook to direct the actions of hospital employees in a
telephone conversation with an emergency room nurse.”
Id. (citations omitted).
We agree with the decisions from other states that
advising a colleague about the possible causes of a patient’s
illness or the proper course of treatment for a patient does
not necessarily give rise to an implied physician-patient
relationship. 8 Put differently, in light of the customary
8 One state court of appeals has held that a plaintiff need not prove a
physician-patient relationship as a prerequisite to stating a medical malpractice

Cite as 352 Or 267 (2012) 	281
practice in the medical profession, the fact that one doctor
offers an opinion to a colleague about that colleague’s patient
does not necessarily mean that the doctor either knows or
should know that he or she is rendering a diagnosis for the
patient, as opposed to offering advice to a colleague.
Plaintiff does not appear to dispute that proposition.
That is, plaintiff does not contend that, if defendant had
made the same statement to the resident—to admit plaintiff
to 	the 	hospital 	for 	pain 	management—in 	a 	different
context, the jury would be required to find that defendant
was diagnosing plaintiff’s condition, as opposed to offering
advice to a colleague. She argues, however, that because
defendant made that statement in his capacity as the on-call
neurosurgeon, the only conclusion that the jury could reach
in this case was that defendant was rendering a diagnosis
and either knew or should have known that he was doing so.
In considering the effect of defendant’s on-call
status on the analysis, we note, as an initial matter, that
the obligations that flow from a physician’s on-call status
are not uniform. Compare Hiser v. Randolph, 617 P2d
774 (Ariz Ct App 1980), overruled on other grounds by
Thompson v. Sun City Cmty. Hosp., 688 P2d 605 (Ariz 1984)
(reversing summary judgment in favor of an on-call doctor
who declined to treat a patient because the jury could find
that the doctor’s contract with the hospital obligated him to
provide care for every person who came to the emergency
room),9 with Fought v. Solce, 821 SW2d 218 (Tex App 1991)
(upholding summary judgment in favor of an on-call doctor
who declined, when asked, to examine an emergency room
claim. Diggs v. Ariz. Cardiologists, Ltd., 8 P3d 386, 389-90 (Ariz Ct App 2000).
Having rejected that requirement, it then held, on similar facts, that a specialist
owed a duty of care to an emergency room doctor’s patient. Id. at 390. In this case,
plaintiff has not argued that we should abandon our cases requiring proof of a
physician-patient relationship and follow the approach announced in Diggs.
9 The court recognized in Hiser that ordinarily “a medical practitioner is free
to contract for his services as he sees fit and in the absence of prior contractual
obligations, he can refuse to treat a patient, even under emergency situations.” 617
P2d at 776. The court held, however, that a jury could find that the defendant had
contracted away that right in return for a daily payment to serve as the on-call
emergency room doctor at a local hospital. Id. at 778. That is, the jury could find
that, as a result of that contractual obligation, a physician-patient relationship
automatically existed between the doctor and the patient whom the doctor refused
to see. See id.

282 	Mead v. Legacy Health System
patient because the doctor’s on-call service was voluntary).
Those obligations can vary from one institution to the next
depending on the institution’s policies, if any; the terms
of any agreement to serve as an on-call physician; or, in
the absence of institutional policies or an agreement, the
customary practice in the relevant medical community.
In this case, neither party identified any hospital
policy or agreement between defendant and Legacy that
specified defendant’s obligations as an on-call physician.
Rather, 	both 	parties 	offered 	expert 	testimony 	on 	the
customary practice in the community. Both Hacker and
Kendrick testified that, based on that customary practice,
defendant had an obligation as the on-call neurosurgeon to
provide care to plaintiff if the emergency room doctor asked
him for a consultation or, as Hacker put it, if the emergency
room doctor asked defendant to “see” plaintiff. Hacker also
testified that, if defendant “had enough information on his
own to conclude this is a patient that [he] should see,” then
defendant had an obligation as the on-call neurosurgeon to
examine or “see” plaintiff and thus enter into a physician-
patient relationship with her—a proposition with which
plaintiff’s expert agreed.10
As explained above, there was evidence that neither
condition occurred in this case. Specifically, the jury could
have found that the resident who telephoned defendant on
July 1 did not ask him to examine or see plaintiff. Rather,
he only asked for defendant’s advice as to whether plaintiff
needed to be seen by a neurosurgeon. The jury also could
have found that the symptoms that the resident described
to defendant depicted a person with a bad back, not
someone suffering from cauda equina syndrome. See note 5
above. Finally, the jury could have inferred that those two
conditions defined the limits of the obligations that flowed
from defendant’s status as the on-call neurosurgeon; that
is, the jury could have inferred that, unless one of those
two conditions existed, defendant’s status as the on-call
10 Defendant has not argued that some different obligation flowed from
his status as an on-call physician, and we assume, for the purpose of analyzing
plaintiff’s argument, that Hacker and Kendrick’s testimony accurately described
the scope of defendant’s obligations as an on-call neurosurgeon.

Cite as 352 Or 267 (2012) 	283
neurosurgeon had no effect on the question whether his
advice gave rise to a physician-patient relationship.
Put 	differently, 	neither 	Hacker 	nor 	Kendrick
testified that the advice defendant gave on July 1 in his
capacity as the on-call neurosurgeon was sufficient, without
more, to give rise to a physician-patient relationship. And
Hacker offered his expert opinion that no physician-patient
relationship arose before July 5, testimony from which the
jury could have inferred that defendant’s advice on July 1
was not sufficient, standing alone, to constitute a diagnosis
or at least that defendant reasonably should not have known
that it was. There is, in short, evidence from which the jury
could have inferred that no physician-patient relationship
arose as a result of defendant’s advice to the resident.
To be sure, the jury could have drawn a different
inference. It 	could 	have 	credited 	other 	witnesses 	and
inferred that, in light of defendant’s greater expertise in
neurosurgery and the allocation of responsibility between
emergency room doctors and on-call physicians, the advice
that defendant offered the resident effectively ruled out
neurosurgical problems as a cause of plaintiff’s condition
and, as a result, defendant should have known that he was
rendering a diagnosis on which the resident and others
would rely. The jury, however, was not required to draw that
inference. It bears repeating that, when a jury has returned
a verdict in favor of a party, we must “uphold the jury’s
verdict, unless our review of the record reveals that there is
no evidence from which the jury could have found the facts”
necessary to sustain its verdict. Northwest Natural Gas Co.,
333 Or at 310 (emphasis added). There is evidence in this
record to support the jury’s verdict.
We note that the conclusion that we reach in this
case is consistent with those courts that have considered
similar claims. No court has held that an on-call physician’s
status coupled with advice about a patient’s condition or
treatment establishes, as a matter of law, that an implied
physician-patient relationship existed. Rather, the courts
have held that the combination of those facts either creates
a question of fact for the jury or leads to a ruling, as a matter
of law, in favor of the on-call physician. See, e.g., Cogswell v.

284 	Mead v. Legacy Health System
Chapman, 672 NYS2d 460, 462 (NY App Div1998) (where
an on-call physician “discussed plaintiff’s injury with [a
physician’s assistant treating plaintiff at an emergency
room], asked if plaintiff’s eye pressure had been checked,
and discussed treatment management with [the physician’s
assistant],” an issue of fact existed as to whether the on-call
physician’s participation in the patient’s treatment gave
rise to a physician-patient relationship); McKinney, 692
NE2d at 1050 (where an on-call cardiologist discussed test
results with an emergency room doctor, offered the opinion
that the patient’s problems were not cardiac in nature and
suggested that the problems could be gastrointestinal,
“reasonable minds could come to different conclusions as to
whether a physician-patient relationship existed between
[the emergency room patient and the on-call cardiologist]”);
Schendel v. Hennepin County Med. Ctr., 484 NW2d 803,
808 (Minn CtApp 1992) (where a consulting neurosurgeon
countersigned a resident’s report stating that x-rays were
negative, protocol required the neurosurgeon to examine
the x-ray before countersigning, and the neurosurgeon’s
name and telephone number were shown on the outside of
the x-ray jacket, “reasonable inferences permitted the jury
to conclude that a physician-patient relationship existed
between [the neurosurgeon] and [the patient]”).
Indeed, on almost identical facts, the Texas Supreme
Court held that no physician-patient relationship existed as a
matter of law. See St. John, 901 SW2d at 424. The court reasoned:
“At no time did [the on-call physician] agree to examine or
treat [the patient]. Although [the on-call physician] listened
to [the treating doctor’s] description of [the patient’s]
symptoms, and came to a conclusion about the basis of [the
patient’s] condition, he did so for the purpose of evaluating
whether he should take the case, not as a diagnosis for a
course of treatment.”
Id. Although we question whether the Texas Supreme
Court correctly held that no juror could find that the on-call
physician in that case had entered into a physician-patient
relationship, we agree that a juror could have inferred
on those facts (as on these) that no physician-patient
relationship existed. The trial court correctly declined to
direct a verdict in plaintiff’s favor on the question whether

Cite as 352 Or 267 (2012) 	285
defendant entered into a physician-patient relationship
with plaintiff on July 1. The Court of Appeals erred in ruling
otherwise.
Plaintiff argues alternatively that, even if there
were evidence from which the jury could have found that
defendant did not enter into a physician-patient relationship
with her on July 1, the trial court erred in instructing the
jury on that issue. In the Court of Appeals, plaintiff assigned
error both to the trial court’s refusal to give her requested
instructions and also to the instruction that the trial court
gave. We begin with plaintiff’s challenges to the trial court’s
instruction.
The trial court instructed the jury:
“In order for [defendant] to be liable for negligence in
caring for [plaintiff], he must have had a physician-patient
relationship with her. In other words, his actions or failure
to act cannot be negligence towards [plaintiff] if she was not
his patient when he acted or failed to act.
“If a doctor actually examines a patient, there is a
physician-patient relationship.
“Also, if another doctor who is treating a patient calls
a specialist, who is on-call, the specialist has a physician-
patient relationship with the patient, if,
“(1) 	the doctor who calls the specialist asks the
specialist to see the patient and the specialist does not
make it clear to the calling doctor that he or she will not do
so or,
“(2) 	the specialist says he or she will see the patient or,
“(3) 	the specialist takes some affirmative action to
diagnose and/or treat the patient showing an intent to
participate in the diagnosis, care or treatment of the
patient.
“If a physician is ‘on-call,’ he or she has a duty to be
available, to be contacted by emergency room physicians or
other health care providers. However, an on-call physician
is not automatically in a physician-patient relationship
with every patient in the emergency room or the hospital.
Also, there is no automatic physician-patient relationship
between a specialist and a patient simply because an
emergency room doctor or other health care provider calls

286 	Mead v. Legacy Health System
the specialist to talk about the patient, even if the specialist
gives general advice.”
At trial, plaintiff objected to the trial court’s proposed
instruction on the ground that paragraph (3) includes an
erroneous phrase: “showing an intent to participate in the
diagnosis, care or treatment of the patient.” Plaintiff argued
that she did not “think [a physician] should get a get-out-of-
jail-free card by saying I didn’t intend. If he takes affirmative
actions that are implicitly indicating that he is participating
in the diagnosis, I think you have got it covered.” On review,
plaintiff reasserts the objection she raised below. Defendant,
for his part, argues that the instruction correctly required the
jury to find not only that he undertook to diagnose plaintiff but
also that he intended to do so. As we understand defendant’s
argument, he contends that a finding of intent is necessary
to establish that he impliedly consented to entering into a
physician-patient relationship.
The trial court’s instruction required the jury to infer
from defendant’s acts “an intent to participate in the diagnosis,
care or treatment of the patient.” As explained above, however,
it is sufficient if defendant either knew or reasonably should
have known that he was diagnosing plaintiff’s condition or
providing treatment to plaintiff. In that event, a physician-
patient relationship arose and defendant owed a duty of rea-
sonable care to plaintiff. In requiring the jury to find “an intent
to participate in the [patient’s] diagnosis, care, or treatment,”
the trial court required too much. Defendant does not argue
that, if the trial court erred in requiring the jury to find intent,
the error was harmless. Such an argument would be difficult
to make. An instruction that required proof of intent when a
lesser mental state will suffice prejudiced plaintiff. See Wallach
v. Allstate Ins. Co., 344 Or 314, 180 P3d 19 (2008) (explaining
when instructional error will be prejudicial).11 We accordingly
reverse the trial court’s judgment and remand for a new trial.12
11 Because the issue is likely to arise on remand, we note that the trial court’s
instruction appears to track the evidence adduced at trial; that is, it attempts to
describe the evidence regarding the practice in the medical community instead
of identifying a legal standard and permitting the jury to determine whether
the facts, considered in light of the practice in the medical community, met that
standard.
12 As noted, plaintiff also argues that the trial court erred in allowing defendant
to ask Leonard and Legacy’s employees whether they were aware that Legacy and

Cite as 352 Or 267 (2012) 	287
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.
DE MUNIZ, J., concurring.
I agree with the reasoning and outcome of the
majority opinion. I write separately only to raise two
concerns about the jury’s task in this case and to offer some
observations about the record that may be pertinent to the
parties in the event of a new trial on remand.
Although the jury may not have understood as much,
part of its duty in this case was to determine what effect
defendant’s obligations as the relevant on-call specialist
(at the time hospital staff sought his advice about plaintiff)
had on the formation of a physician-patient relationship
between himself and plaintiff. My first concern is with the
kind of evidence that the parties presented—seemingly out of
necessity—to prove that defendant’s obligations as the on-call
neurosurgeon either were, or were not, the sort of obligations
from which a physician-patient relationship could be inferred
in the circumstances. In particular, I find it problematic that
the jury was required to base its determination for the most
part on the opinions of opposing experts.
The majority opinion points out that the obligations
that flow from a physician’s on-call status apparently are
not uniform, and “can vary from one institution to the next
depending on the institution’s policies, if any; the terms
of any agreement to serve as an on-call physician; or, in
the absence of institutional policies or an agreement, the
customary practice in the relevant medical community.”
352 Or at 282. The opinion thus suggests that there are
three kinds of evidence that could be used by a factfinder
in determining the import of defendant physician’s on-call
Leonard had entered into so-called Mary Carter agreements. More specifically,
the parties disagreed whether the “rebate” provisions of those agreements were
still in effect after the trial court dismissed Legacy and Leonard as defendants
and, if not, whether defendant could still seek to impeach the witnesses with
the fact that Leonard or Legacy had entered into the agreements. On that issue,
plaintiff’s counsel represented that plaintiff, Legacy, and Leonard had modified
the agreements after the trial court dismissed Legacy and Leonard as defendants,
although plaintiff never submitted the modified agreements to the court. Because
this issue may not arise in the same posture on remand, we decline to address it.

288 	Mead v. Legacy Health System
status, and that the third kind—expert testimony about the
customary practice in the relevant medical community—
is inferior and should be offered only when formal policies
and 	contracts 	pertaining 	to 	on-call 	obligations 	do 	not
exist. Although the majority opinion does not explain the
reasoning underpinning that hierarchy, it should be obvious
that the opinions of experts about what doctors do or do not
do in particular situations are just that—opinions—and
that their persuasive power may have less to do with any
objective “truth” than with the style or authority with which
they are spoken.
In this case, the parties relied entirely on expert
testimony 	about 	the 	customary 	practice 	of 	on-call
neurosurgeons in the medical community. Although certain
of Legacy Portland Hospitals’ bylaws and rules were offered
to show that defendant was obligated to participate in the
hospitals’ emergency room “on-call rotation,” no rule, policy,
or agreement was offered that spelled out defendant’s specific
obligations when he was serving as an on-call medical
specialist. Apparently no such rule, policy, or agreement
existed. And, as I deduce from my own research, that state
of affairs, i.e., the failure of hospitals to spell out specific
on-call obligations in rules, policies, and contracts, is more
typical than not.
I find it surprising, and a bit dismaying, that
hospitals have chosen to leave their relationships with
on-call providers to the vicissitudes of what is deemed to
be the common practice in the medical community. Given
the increasing complexity of the health care industry, the
increasing dependence of that industry on institutional
resources, the increasing tendency of institutional providers
to diagnose patients through specialists who have never seen
the patients face-to-face, and the increasing, and perfectly
reasonable, tendency of patients to look to institutional
providers, rather than the particular doctor that they see,
to provide medically appropriate services,1 it would seem
that hospitals would wish to bind any provider on whose
1 See 352 Or at 277 (quoting Kelley v. Middle Tennessee Emergency Physicians,
133 SW2d 587, 596 (Tenn 2004)); Eads v. Borman, 351 Or 729, 759-60, 277 P3d 503
(2012) (De Muniz, J., specially concurring) (discussing changes in way health care
is delivered).

Cite as 352 Or 267 (2012) 	289
services they depend to a specific set of standards. That
hospitals have chosen not to do so with respect to on-call
specialists is, of course, not a concern of the courts, but it
affects our work insofar as it requires judges and juries to
make serious decisions about institutional obligations based
on the relative persuasiveness of opposing experts.
My second concern arises out of the trial court’s
instruction to the jury about when and how a physician-
patient relationship might arise between an on-call specialist
and an emergency room doctor’s patient. The majority
opinion finds that instruction to be erroneous on the specific
ground that plaintiff identified, but it also hints that the
instruction may be problematic in another way. See 352 Or
at 286 n 11 (noting that instruction “appears to track the
evidence adduced at trial” rather than “identifying a legal
standard and permitting the jury to determine whether the
facts * * * met that standard”). My own view of the problem
is that the instruction is likely to confuse the jury about the
proper role of certain important evidence that was presented
at trial and presumably also will be presented in the trial
on remand—expert testimony about common practices and
expectations with regard to on-call specialists in the medical
community.
According to the majority opinion (with which I
agree), the essential “test” for the existence of a physician-
patient relationship, when the physician has not dealt with
the patient directly, is whether, in light of the particular
circumstances, the physician “either knows or reasonably
should know that he or she is diagnosing a patient’s
condition or treating the patient.” 352 Or at 279. Among
the circumstances that must be considered in making that
determination are “the customary practice within the relevant
medical community, the degree and the level of formality
with which one physician has assumed (or the other doctor
has ceded) responsibility for the diagnosis or treatment, the
relative expertise of the two physicians, and the reasonable
expectations, if any, of the patient under the circumstances.”
Id. With respect to the circumstance in which an on-call
specialist is contacted by an emergency room doctor about
a patient, the doctor’s advice or opinion about the patient’s

290 	Mead v. Legacy Health System
condition may not amount to a knowing diagnosis or create
a physician-patient relationship as a matter of law. Rather,
because the obligations of on-call specialists may vary
from hospital to hospital, the specialist’s on-call status can
create additional questions of fact relating to the essential
test for the existence of a physician-patient relationship.
Specifically, the terms of any on-call agreement, the rules
and policies of the hospital pertaining to on-call service, and
the customary practice with regard to such service in the
relevant medical community are additional facts that are
relevant to the basic question of whether the on-call doctor
knew or should have known that he or she was diagnosing
the patient’s condition (or treating the patient). Id. at 16-17.
In the present case, the parties offered the testimony
of several experts relevant to the question of whether, in light
of defendant’s on-call status and the customary practices
of persons engaging in such on-call service in the medical
community, defendant knew or should have known that he
was diagnosing plaintiff when he told an emergency room
doctor that plaintiff did not appear to be a candidate for
surgery. However, the instruction that the trial court gave
failed to convey that the evidence should be used in that
way, and may have led jurors to believe, incorrectly, that
the effect of defendant’s on-call status on his obligations
(or, more to the point, on his imputed understanding of the
effect of his advice) was a matter of law, and not a factual
matter within the jury’s province. A proper instruction
would avoid that pitfall by, first, setting out the essential
test for a physician-patient relationship as described in the
majority opinion, 352 Or at 279 and this concurrence, 352 Or
at 289 (De Muniz, J., concurring) and second, describing the
various circumstances that should be considered in applying
that test, including the fact of the physician’s on-call status
and any of the specific obligations that that on-call status
entails, as evidenced by the hospital’s rules, regulations, or
contracts and the customary practices with regard to on-call
service in the relevant medical community.
Because I agree with the reasoning and outcome of
the majority opinion, and including my observations set out
above, I concur in the decision of the court.

Cite as 352 Or 267 (2012) 	291
WALTERS, J., dissenting.
It 	is 	undisputed 	that 	defendant 	agreed, 	as 	a
condition 	of 	obtaining 	hospital 	privileges, to 	serve 	as
an on-call physician and respond to calls for advice and
assistance from emergency room physicians. It is also
undisputed that on July 1, 2002, in that capacity, defendant
received a call from an emergency room physician seeking, in
defendant’s own words, his advice “to determine at this time
whether the patient needs to be seen by a neurosurgeon.”1
Defendant took the call; obtained the results of plaintiff’s
physical, neurological, and MRI examinations; 2 determined
the nature of plaintiff’s medical condition; and advised
the emergency room physician that plaintiff was not a
neurosurgical candidate and should instead be admitted to
the hospital for pain management and control.
Those undisputed facts establish that defendant
assumed to exercise, and did exercise medical duties on
plaintiff’s behalf on July 1. The legal conclusion that follows
from those facts is inescapable: The court will imply the
existence of a physician-patient relationship and defendant
is subject to liability to plaintiff if he failed to perform those
services with reasonable care. Because the majority holds
otherwise, I respectfully dissent.
1 Defendant described the purpose of his discussion with the emergency room
physician as follows:
“The discussion was relatively brief. There was no real sense of urgency. It
was a sort of a phone call for advice, what do I—what do you think, this patient
has disk bulge on MRI, but she also has this bad back pain and what do you
think we ought to do.”
Defendant testified that his perception was that the phone call was intended to
“ask about a patient, to be a—ask for advice, to give advice, and to determine
at this time whether the patient needs to be seen by a neurosurgeon.”
2 Defendant testified that he was informed that plaintiff “had bad back pain,
who was neurologically intact, who had [an] MRI with a disk bulge and had
normal rectal tone.” Defendant testified that “neurologically intact” meant that
no neurological deficits had been found during a neurological exam. He explained
that a typical neurological exam
“consists of several components. It consists of doing a mental status exam,
being awake, alert and oriented to person, place and time, doing a cranial nerve
exam, which are certain nerves that go to predominantly the face and neck
and viscera of the chest and abdomen, and doing a sensory and motor exam, as
well as a rectal exam to evaluate bowel and bladder, bowel specifically.”

292 	Mead v. Legacy Health System
The majority begins by stating that “without a
physician-patient relationship ‘ “there c[an] be no duty to
the plaintiff, and hence no liability.” ’ ” 352 Or at 276) (citing
Dowell v. Mossberg, 226 Or 173, 181-82, 355 P2d 624 (1960),
rev’d on reh’g on other grounds, 226 Or 173, 359 P2d 541
(1961), quoting Currey v. Butcher, 37 Or 380, 385, 61 P 631
(1900)). The majority then decides that it is appropriate
to imply the existence of a physician-patient relationship
when a physician knows or reasonably should know that
he or she is diagnosing or treating a patient. 352 Or at 277-
78. However, in the final analysis, the majority declines
to analyze whether those predicate facts were disputed.
Instead, the majority relies on the testimony of expert
witnesses about whether defendant met the community
standard of care when he failed to go to the hospital on
July 1 to personally see and treat plaintiff for its conclusion
that a jury could decide that there was no implied physician-
patient relationship on that date, and, hence, no liability.
352 Or at 282-83.
To demonstrate the fundamental nature of the
majority’s error, I begin, as the majority does, with Dowell
and its citation to Currey, an earlier legal malpractice case.
In Dowell, the court quoted a passage from Currey, in which
the court explained that a professional has a “duty” to
exercise “reasonable care and skill” when the professional
assumes to exercise the duties of the profession on behalf of
another:
“ ‘Where one adopts the legal profession, and assumes to
exercise its duties in behalf of another for hire, the law
imposes a duty to exercise reasonable care and skill, and
if an injury results to his client from want thereof he is
liable to respond in damages to the extent of the injury
sustained.’ ”
Dowell, 226 Or at 181, quoting Currey, 37 Or at 384-85. The
court then continued to reason that a “duty” of care “ ‘arises
from the relation of the parties under the contract, rather
than from the contract itself’ ” and that it is “ ‘necessary to
aver the contract of employment, showing the relation of
attorney and client, as a matter of inducement, because
without such contract there could be no duty to the plaintiff,
and hence no liability.’ ” Dowell, 226 Or at 181-82, quoting

Cite as 352 Or 267 (2012) 	293
Currey, 37 Or at 385 (emphasis added). Finally, the court
stated
“ ‘When there is a contract, either express or implied,
from which a common-law duty results, an action on the
case lies for a breach of that duty, in which case the contract
is laid as mere inducement, and the tort arising from the
breach of duty as the gravamen of the action.’ ”
Dowell, 226 Or at 182, quoting Currey, 37 Or at 385.
What the court explained in Dowell, in the terms
that the court in Currey used in 1900, is that a professional
cannot be held liable for damages incurred by another merely
because the professional possesses skills and expertise that,
if exercised, may have prevented those damages. However,
when a professional assumes to exercise and exercises
professional duties on behalf of a particular person, the
professional does so pursuant to a contract, either express
or implied. That contract has legal consequences: It creates
a physician-patient relationship, requires the exercise of
reasonable care, and subjects the physician to liability for
failure to exercise that degree of care.
Oregon statutory law also requires that a licensed
physician perform medical duties with reasonable care.
Specifically, 	ORS 	677.095(1) 	requires 	that 	licensed
physicians “use that degree of care, skill and diligence that
is used by ordinarily careful physicians * * * in the same or
similar circumstances in the community of the physician.”
ORS 677.085 sets forth the acts that constitute the practice of
medicine and that require licensure,3 including, as pertinent
3 ORS 677.085 provides:
“A person is practicing medicine if the person does one or more of the
following:
“(1) Advertise, hold out to the public or represent in any manner that the
person is authorized to practice medicine in this state.
“(2) For compensation directly or indirectly received or to be received,
offer or undertake to prescribe, give or administer any drug or medicine for
the use of any other person.
“(3) Offer or undertake to perform any surgical operation upon any
person.
“(4) Offer or undertake to diagnose, cure or treat in any manner, or by
any means, methods, devices or instrumentalities, any disease, illness, pain,
wound, fracture, infirmity, deformity, defect or abnormal physical or mental
condition of any person.

294 	Mead v. Legacy Health System
to the facts in this case, “[o]ffer[ing] or undertake[ing] to
diagnose * * * [the] physical or mental condition of any
person.” “Diagnose,” in turn, is defined in ORS 677.010(4)
to mean “to examine another person in any manner to
determine the source or nature of a disease or other physical
or mental condition.” Moreover, ORS 677.010(4) specifically
provides that that examination need not be made in the
presence of the person being examined but may be made
based on information provided by the person. 4 Thus, under
Oregon statutes, a physician who engages in the practice
of medicine, including examining a person and determining
the nature of that person’s medical condition, must do so
with the requisite degree of care.
Under Dowell and Oregon statutory law, application
of the standard of due care depends on the physician’s
exercise of medical duties on behalf of a patient and not
on the existence of an actual relationship or a personal
meeting between the two. So, for instance, a radiologist may
examine a patient’s medical condition by reviewing x-rays
outside of the presence of that patient and without ever
meeting or forming a relationship with him or her. Under
Dowell, because the radiologist has exercised the duties
of the medical profession on behalf of that person, the law
recognizes the existence of an implied contract to do so.
That implied contract creates an implied physician-patient
relationship and subjects the radiologist to liability if he or
she fails to exercise due care in the performance of his or
her medical duties. Under Oregon statutory law, because
the radiologist is engaged in the practice of medicine, the
law requires the exercise of “that degree of care, skill and
“(5) Except as provided in ORS 677.060, append the letters ‘M.D.’ or ‘D.O.’
to the name of the person, or use the words ‘Doctor,’ ‘Physician,’ ‘Surgeon,’ or
any abbreviation or combination thereof, or any letters or words of similar
import in connection with the name of the person, or any trade name in
which the person is interested, in the conduct of any occupation or profession
pertaining to the diagnosis or treatment of human diseases or conditions
mentioned in this section.”
4 ORS 677.001(4) defines “diagnose” to mean:
“to examine another person in any manner to determine the source or nature
of a disease or other physical or mental condition, or to hold oneself out or
represent that a person is examining another person. It is not necessary that
the examination be made in the presence of such other person; it may be made
on information supplied either directly or indirectly by such other person.”

Cite as 352 Or 267 (2012) 	295
diligence that is used by ordinarily careful physicians * * * in
the same or similar circumstances in the community of the
physician[,]” ORS 677.095(1), and subjects the radiologist to
liability for negligence if he or she falls below that level of
care.
Thus, when a court says that liability depends on the
existence of a physician-patient relationship, what it means
is that liability depends on the existence of the predicate facts
that give rise to an implied, not an actual, physician-patient
relationship. When a physician exercises medical duties on
behalf of a particular person, those predicate facts give rise
to an implied physician-patient relationship, require the
exercise of reasonable care, and subject the physician to
liability for negligence. The existence of an implied physician-
patient relationship is a legal consequence of the predicate
facts; it is not itself a factual inquiry. Therefore, the term
“physician-patient relationship” does not have significance
apart from those predicate facts or the legal consequences
that flow from those facts. It is only a label that courts use
to make short-hand reference to those predicate facts and
their legal consequences.5
At points in its opinion, the majority seems to
understand and agree with that proposition. The majority
frames the standard that determines the existence of the
implied 	physician-patient 	relationship 	in 	terms 	of 	the
necessary predicate facts: “whether a physician who has not
personally seen a patient either knows or reasonably should
know that he or she is diagnosing a patient’s condition or
treating the patient.” 352 Or at 279. The majority does not
identify the source of that standard in Oregon law, but it
is, in my view, consistent with Oregon law. A physician
who knows or reasonably should know that he or she is
diagnosing a patient’s condition also is exercising the
duties of the medical profession on behalf of a particular
person. Consequently, under Dowell and Oregon statute, the
5 The term “physician-patient relationship” is confusing because it can refer to
an actual, personal bond or a relationship that is created by law. Some members
of a patient’s medical team may form actual, personal bonds with their patients
while others will not. It is confusing to explain the duty of care as arising from
the existence of a physician-patient relationship when the relationship may exist
only as a matter of law and not as a matter of fact. The term is unnecessary, and I
advocate that it be avoided.

296 	Mead v. Legacy Health System
physician must perform those duties with reasonable care
and is subject to liability for negligence in that performance.6
Applying the standard that the majority articulates,
the question should be whether the uncontested facts
established that, on July 1, defendant knew or reasonably
should have known that he was diagnosing, or determining
the nature of, plaintiff’s medical condition. However, the
majority instead looks to the testimony of expert witnesses
who were not asked to consider, and who did not address,
that question.
The majority cites the testimony of doctors Hacker
and Kendrick, both of whom testified about whether, to meet
the community standard of care, defendant was required to
come in to the hospital on July 1 to see and care for plaintiff.
Both of those physicians testified that, when an emergency
room physician requests that a neurosurgeon “see” a patient,
or when the neurosurgeon obtains sufficient information to
alert the neurosurgeon of the need to do so, the neurosurgeon
must come to the hospital and personally see and examine
the patient. In this case, Hacker, who testified for defendant,
opined that, although defendant did not go to the hospital
to see plaintiff on July 1, he met the community standard of
care because the emergency room physician did not request
that defendant “see” plaintiff, and the information that
the emergency room physician relayed was not sufficient
to alert him that he should do so. Kendrick, who testified
for plaintiff, concluded that the emergency room physician
had requested defendant’s participation in plaintiff’s care.
Neither witness questioned the assumption that defendant
was required to exercise reasonable care in the duties that
he actually performed on July 1—answering the call from
the emergency room physician and giving his expert advice.
Instead, the experts testified at length about the significance
of the information that defendant obtained about plaintiff’s
6 Both the majority standard and Oregon law capture the concept that the
genesis of a physician’s tort duty is in contract and depends on his or her consent—
either express or implied—to perform medical duties for a patient. The majority
standard does so by requiring that the physician’s diagnosis or treatment occur
under circumstances indicating that the physician knew or should have known
that he or she was performing medical duties on behalf of a patient. Oregon law
does so by requiring that the circumstances indicate that the physician assumed
to exercise and did exercise medical duties on behalf of a patient.

Cite as 352 Or 267 (2012) 	297
medical condition on July 1 and whether the conclusion
that he reached—that plaintiff was not a neurosurgical
candidate—was reasonable in light of that information and
the applicable standard of care. That testimony created an
issue of fact as to whether defendant met the standard of
care on July 1. However, it did not create a question of fact
as to whether defendant was required to exercise reasonable
care on that date.
Neither 	Hacker 	nor 	Kendrick 	disputed 	that
defendant was performing medical duties when he responded
to the call from the emergency room physician on July 1. As
Kendrick testified, “we as neurosurgeons, when we are on
call and get such a call have to respond, first of all.” The
witnesses also did not dispute that defendant obtained
the results of plaintiff’s physical, neurological, and MRI
examinations and provided the emergency room physician
with his expert opinion that plaintiff’s condition was such
that she was not a candidate for neurosurgery. Because
those facts demonstrate that defendant knew or should have
known, on July 1, that he was examining and determining
the nature of, or “diagnosing,” plaintiff’s medical condition
and that defendant was performing medical duties on behalf
of plaintiff, legal consequences flow from those facts: The
law implies the existence of a physician-patient relationship
and imposes a duty of reasonable care.
Furthermore, 	whether 	defendant 	met 	the
community standard of care by the actions that he did not
take—failing to “see” and treat plaintiff on July 1—does not
address whether defendant met the standard of care by the
actions that he did take—in examining and determining
the nature of plaintiff’s medical condition on that date.
Harkening back to my previous example, customary practice
may not require a radiologist to “see” or treat a patient, but
that does not mean that the law will not imply a physician-
patient relationship from the duties that the radiologist did
perform—examination of the patient’s x-rays—and require
that those duties be performed with reasonable care. Here,
even if customary practice did not require defendant to come
to the hospital to personally see and treat plaintiff on July 1,
the 	law 	implies 	a 	physician-patient 	relationship 	from

298 	Mead v. Legacy Health System
defendant’s assumption and performance of other medical
duties—responding to the call from the emergency room
physician and examining and determining the nature of
plaintiff’s medical condition—and requires that defendant
perform those duties with reasonable care. The testimony of
doctors Hacker and Kendrick appropriately addressed the
factual question of whether defendant acted in accordance
with the standard of care on July 1. But that testimony cannot
relieve defendant of the legally imposed obligation to do so.
The 	majority’s 	reliance 	on 	Hacker’s 	conclusory
testimony is misplaced for the same reasons. When asked
whether, “[i]n your judgment and based upon your training
and experience, was there a physician-patient relationship
between [defendant] and [plaintiff] over the period [from]
July 1 until [defendant] saw her on July 5,” Hacker replied,
“I didn’t see a doctor-patient interaction or relationship
[between defendant and plaintiff] until the first note I read
by [defendant] on July 5.” (Emphasis added.) The question
was neither posed nor answered in terms of whether the
predicate facts that give rise to an implied physician-patient
relationship were established. Those facts—that defendant
exercised medical duties on behalf of plaintiff on July 1—
were proved. Hacker’s testimony that no personal interaction
occurred on that date does not negate those facts and cannot
negate their legal consequences: 	An implied physician-
patient relationship existed, defendant was required to act
with reasonable care, and he was subject to liability if he
did not. Unlike the majority, defendant does not argue that
Hacker’s testimony creates a question of fact about whether
an implied physician-patient relationship existed on July 1,
and for good reason. That conclusion follows as a matter of
law from the predicate facts; it is not itself a factual inquiry
amenable to expert testimony.
This is not a case like those that the majority cites
from other jurisdictions, in which the physician whose
conduct is at issue did not serve in a formal on-call capacity,7
7 I agree that physicians who give advice of an informal or general nature
may not be subject to liability. See, e.g., Jennings v. Badgett, 230 P3d 861, 868-69
(Okla 2010); Stutes v. Samuelson, 180 SW3d 750, 754-55 (Tex App 2005); Corbet
v. McKinney, 980 SW2d 166, 171 (Mo App 1998); Reynolds v. Decatur Memorial
Hosp., 277 Ill App 3d 80, 85, 660 NE2d 235 (1996); Lopez v. Aziz, 852 SW2d 303,

Cite as 352 Or 267 (2012) 	299
or declined to provide advice or medical services for the
benefit of the emergency room patient.8 Here, defendant was
not acting informally, but pursuant to contract. Defendant
agreed, as a condition of obtaining hospital privileges, to
serve as an on-call physician and was required to respond
to the emergency room physician’s request for assistance.
Defendant did not decline to give the emergency room
physician his expert opinion as to how plaintiff should
be treated. He obtained the results of plaintiff’s physical,
neurological, and MRI examinations before he reached his
conclusion about the nature of her condition—that she was
not a candidate for neurosurgery. Defendant performed
those duties as a member of plaintiff’s medical team, and
there is no reason that he, like other members of that team,
should not be held to a standard of reasonable care.9
I do not understand the majority’s hesitation to
simply decide that defendant was required to exercise
reasonable care in the performance of his medical duties
on July 1. Other professionals, such as radiologists, nurses,
and hospital administrators who perform medical duties
on behalf of patients are required to perform their duties
with reasonable care and are subject to liability if the harm
that the patients suffer is reasonably foreseeable and the
306-07 (Tex App 1993); Hill v. Kokosky, 186 Mich App 300, 303-04, 463 NW2d 265
(1990).
8 I agree that on-call physicians who do not actually provide advice or medical
services of any kind may not be subject to liability. See, e.g., Reynosa v. Huff, 21
SW3d 510, 513 (Tex App 2000); Prosise v. Foster, 261 Va 417, 423-24, 544 SE2d 331
(2001); Anderson v. Houser, 240 Ga App 613, 618, 523 SE2d 342 (1999); Oja v. Kin,
229 Mich App 184, 190-91, 581 NW2d 739 (1998); Fought v. Solce, 821 SW2d 218,
220-21 (Tex App 1991).
9 This also is not a case that arose on a defendant’s motion for summary
judgment. The cases from foreign jurisdictions that the majority cites, 352 Or at
283-84, do not stand for the proposition that the existence of an implied physician-
patient relationship is always a question of fact for a jury. In those cases, courts
denied defendant physicians’ motions for summary judgment, directed verdict, or
judgment notwithstanding the verdict, on the ground that those defendants were
not entitled to judgment as a matter of law. See Cogswell v. Chapman, 249 AD2d
865, 672 NYS2d 460 (1998) (affirming denial of defendant physician’s motion for
summary judgment); McKinney v. Schlatter, 118 Ohio App 3d 328, 692 NE2d 1045
(1997) (reversing grant of directed verdict for defendant); Schendel v. Hennepin
County Medical Center, 484 NW2d 803 (Minn App 1992) (physician defendants
appealed denial of judgment notwithstanding the verdict; court determined that
evidence supported physician-patient relationship). The plaintiffs in those cases
did not contend that the facts that gave rise to a duty of care were uncontested.

300 	Mead v. Legacy Health System
professional’s negligence is a cause in fact of that harm.10
I do not understand why the same should not be required
of defendant. For him, however, instead of clearly stating
the applicable rule, the majority requires a jury to consider,
among other things,
“the 	customary 	practice 	within 	the 	relevant 	medical
community, the degree and the level of formality with
which one physician has assumed (or the other doctor has
ceded) responsibility for the diagnosis or treatment, the
relative expertise of the two physicians, and the reasonable
expectations, if any, of the patient under the circumstances.”
352 Or at 278-79. I cannot find those factors in Oregon law,
and I do not know how a jury is to use them in deciding
whether a physician knew or should have known that he or
she was diagnosing, or determining the nature of, a patient’s
medical condition. In this case, customary practice may affect
the standard of care that defendant was required to meet—
for instance, the information that defendant was expected
to obtain from the emergency room physician—but I do
not understand how customary practice bears on whether
defendant knowingly considered and determined the nature
of plaintiff’s medical condition. Defendant was responsible
for the diagnosis that he imparted to the emergency room
physician. If the emergency room physician did not rely on that
diagnosis, a jury may find that defendant’s diagnosis was not
a cause in fact of plaintiff’s injuries, but I do not understand
how the emergency room physician’s ultimate responsibility
for the patient’s treatment bears on whether defendant made
his own determination of the nature of plaintiff’s medical
condition and should be required to do so with reasonable
care. Plaintiff may not have known of defendant’s role in
diagnosing her condition, but I do not understand how that
could affect whether defendant knew that he had that role.
Finally, defendant was a neurosurgeon, and the emergency
room physician was not. I do not understand how a jury is
to consider or weigh that or any of the other factors that
the majority identifies to decide whether defendant knew, on
July 1, that he was diagnosing plaintiff’s medical condition.
10 See Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 734 P2d 1326 (1987)
(setting out that paradigm for assessing liability for negligence). As far as I can
discern, neither plaintiff nor the majority asserts that defendant was required to
perform a more specific duty than a duty of reasonable care.

Cite as 352 Or 267 (2012) 	301
I do not understand how a court will instruct a jury on those
factors or decide from the jury’s factual findings on each of
them whether to imply the existence of a physician-patient
relationship. More to the point, the parties are entitled to
have this court tell them whether, on these facts, defendant
was obligated to exercise reasonable care and was subject to
liability for his negligence, if any.
The question that defendant himself poses for this
court’s decision is really quite simple: Whether an on-call
neurosurgeon who provides telephone advice that is only a
suggestion or a recommendation or that an emergency room
physician rejects can be subject to liability for negligence.11
This 	court 	should 	answer 	that 	question 	affirmatively.
In the circumstance in which an on-call neurosurgeon
answers a telephone call for advice; obtains the results of an
emergency room patient’s physical, neurological, and MRI
examinations; evaluates and determines the nature of the
patient’s medical condition; and gives the emergency room
physician his or her opinion in that regard, this court should
hold that the neurosurgeon is performing medical duties on
behalf of the patient and must exercise reasonable care.
The neurosurgeon’s advice may be quite reasonable, or the
emergency room physician may not be required to accept or
even may reject it. If so, a jury may find that the physician is
not negligent or that the advice was not the cause in fact of
the patient’s harm and render its verdict for defendant. But
the neurosurgeon, like the radiologist and other members
of the patient’s medical team, is required to use due care.
Because the majority permits a jury to decide otherwise, I
dissent.
11 In his brief in this court, defendant identifies the question presented and
the proposed rule of law as follows:
“Question Presented: When does a physician-patient relationship arise
between an emergency room patient and an on-call neurosurgeon, when that
neurosurgeon is consulted over the telephone by the ER physician?
“Proposed Rule of law: An implied physician-patient relationship arises when
a physician affirmatively undertakes to diagnose and/or treat the patient.
However, such a relationship will not arise where an on-call physician,
consulted over the telephone regarding an emergency room patient, provides
advice that is only a suggestion or recommendation regarding the patient’s
treatment that can be either accepted or rejected by the ER physician, or if the
advice is rejected by the ER physician.”
(Emphasis added.)