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.
*292The 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 *293Currey, 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 *294to 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 *295diligence 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 *296physician 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, plaintiffs 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 *297medical 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 *298defendant’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 *299or 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 *300professional’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 278-79.1 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. *301I 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.
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.”
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.”
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“(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.”
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.”
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 confhsing 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 he avoided.
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.
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, *299306-07 (Tex App 1993); Hill v. Kokosky, 186 Mich App 300, 303-04, 463 NW2d 265 (1990).
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. Solee, 821 SW2d 218, 220-21 (Tex App 1991).
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.
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.
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.)