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 *288status, 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 *289services 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 *290condition 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.
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).