dissenting on rehearing.
I. Introduction
I respectfully dissent from the majority’s disposition of Dr. Gross’s appeal. The evidence does not conclusively establish termination of the physician-patient relationship between Dr. Gross and Hunter, and viewing the evidence in the light most favorable to the jury’s verdict and disregarding all contrary evidence and inferences, the evidence is legally sufficient to support the deemed finding that at the time in question Hunter Burt was Dr. Gross’s patient with respect to Hunter’s retinopathy of prematurity (ROP). Consequently, I would decline to reverse the trial court’s judgment against Dr. Gross on the grounds articulated by the majority and would, instead, address Dr. Gross’s remaining issues. Thus, I would grant rehearing en banc as to Dr. Gross.1
II. Physician-Patient Relationship Between Dr. Gross and Hunter
Dr. Gross does not dispute that he had a physician-patient relationship with Hunter when he examined Hunter for ROP in the hospital. He stated below in the trial court that “[w]e are not taking the position that there was no relationship for the examination in the hospital.” Instead, Dr. Gross claims in his first issue that “[w]ith respect to the jury’s finding that Dr. Gross’fe] negligence caused any harm to Hunter Burt ... Dr. Grosses] limited physician-patient relationship with Twin B, a/k/a Hunter ‘Taylor,’ terminated upon completion of the ROP screen.” [Emphasis added.]
Termination of an existing physician-patient relationship is an affirmative defense or a matter in avoidance which the physician bears the burden of pleading and proving. Accord Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.1996) (jury’s finding of affirmative defense of justification rendered immaterial finding of actual malice); Sunsinger v. Perez, 16 S.W.3d 496, 500 (Tex.App.-Beaumont 2000, pet. denied) (discussing defendant doctor’s motion for summary judgment on ground of affirmative defense that patient had terminated physician-patient relationship). *243Although Dr. Gross contended at trial and asserts on appeal that his physician-patient relationship with Hunter with respect to Hunter’s ROP terminated following the in-hospital screening, he did not request a termination special question or instruction or object to the lack of such a question or instruction. Consequently, no such question or instruction was submitted.2 If a party totally fails to request that a particular defense be included in the court’s charge, it is waived unless it is conclusively established as a matter of law. See Tex.R. Civ. P. 279 (providing that upon appeal all independent grounds of recovery or defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived); see also Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex.2002) (recognizing that a party waives an entire theory of defense by not objecting to its omission from the charge); Vickery v. Comm. for Lawyer Discipline, 5 S.W.3d 241, 253 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (same).
Therefore, the issue presented by Dr. Gross’s complaint that “[w]ith respect to the jury’s finding that Dr. Gross’[s] negligence caused any harm to Hunter Burt ... Dr. Grosses] limited physician-patient relationship with Twin B, a/k/a Hunter ‘Taylor,’ terminated upon completion of the ROP screen” was waived, unless termination of the physician-patient relationship between Dr. Gross and Hunter was established as a matter of law. See Gulf States Utils., 79 S.W.3d at 565; see also Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988) (holding discovery rule was independent ground of defense under rule 279 and that failure to request findings or object to charge not submitting discovery rule waived right to complain on appeal).
During the charge conference in this case, a lengthy debate occurred concerning whether to submit the Burts’ requested jury special question on the existence of a physician-patient relationship between Dr. Gross and Hunter. See 3 Comm, on PatTERN JURY CHARGES, STATE BAR OF TEX., Texas PatteRN JURY Charges PJC 50.6 (2d ed. 2002) (setting forth a physician-patient relationship special question). Ultimately, counsel for Dr. Gross and for Hunter agreed that the trial court had found as a matter of law that a physician-patient relationship existed between Dr. Gross and Hunter, at least at the time of Dr. Gross’s in-hospital examination of Hunter. Dr. Gross did not object to the omission of a physician-patient relationship special question from the charge. Consequently, to the extent Dr. Gross’s first issue constitutes a challenge to the legal sufficiency of the evidence to establish a post-hospital-examination physician-patient relationship between Dr. Gross and Hunter, that finding is deemed in support of the judgment. See Tex.R. Civ. P. 279; In re J.F.C., 96 S.W.3d 256, 262-63 (Tex.2002).
Under this analysis, the issue presented by Dr. Gross’s “no evidence” complaint that “[w]ith respect to the jury’s finding that Dr. Grosses] negligence caused any harm to Hunter Burt ... Dr. Grosses] limited physician-patient relationship with *244Twin B, a/k/a Hunter ‘Taylor,’ terminated upon completion of the ROP screen” is whether legally sufficient evidence exists supporting the deemed finding of a physician-patient relationship between Dr. Gross and Hunter with respect to Hunter’s ROP. In conducting this legal sufficiency analysis, we are required to view the evidence in the light most favorable to the jury’s verdict and to disregard all evidence and inferences to the contrary. See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002). Viewing the evidence in the light most favorable to the jury’s verdict, disregarding all evidence and inferences to the contrary, more than a scintilla of evidence exists of a physician-patient relationship between Dr. Gross and Hunter with respect to Hunter’s ROP following the in-hospital examination.
A. Legally Sufficient Evidence Supports Deemed Finding of Physician-Patient Relationship
The parties agree that Dr. Gross had a physician-patient relationship with Hunter with respect to Hunter’s ROP when he examined and diagnosed Hunter in the hospital on February 8, 1997. In 1996, the American Academy of Pediatrics, the American Association for Pediatric Ophthalmology and Strabismus, and the American Academy of Ophthalmology approved guidelines concerning screening premature infants for ROP. The guidelines state that infants with a birth weight of under 1500 grams or with a gestational age of 28 weeks or less should have a dilated indirect ophthalmoscopic examination to detect ROP. The examination should be carried out by an ophthalmologist with experience in the examination of preterm infants. This is the examination Dr. Gross conducted on Hunter to diagnose Hunter with ROP.
The American Academy of Pediatrics, the American Association for Pediatric Ophthalmology and Strabismus, and the American Academy of Ophthalmology also approved guidelines which state that infants with ROP, like Hunter, “should be seen at least every 1 to 2 weeks until normal vascularization proceeds to Zone III or the risk of attaining threshold conditions is passed.” According to Dr. Gross, these guidelines constitute the standard of care for a pediatric ophthalmologist treating an infant with ROP.3 Likewise, Dr. Burke, the Burt’s expert, testified at trial that it was Dr. Gross’s responsibility “to make sure that the follow-up examinations be carried out” and that Dr. Gross should have identified Hunter Burt as Hunter Taylor.
Dr. Yee testified that Dr. Kim Smith called him on February 12, 1997, and told him that the twins had a February 17, 1997 follow-up appointment with Dr. Gross because Hunter had been diagnosed by Dr. Gross as having ROP. Nonetheless, although he had six days, Dr. Yee did not complete Hunter’s referral papers to Dr. Gross’s office prior to the scheduled visit. Dr. Yee completed the referral papers on February 19, 1997, too late for Hunter to make the February 17 appointment with Dr. Gross.
*245Alyssha Burt testified that she learned on the evening of February 8 that Dr. Gross had examined Hunter’s eyes in the hospital that day. The nurse told Alyssha that the exam was “great,” “a one, the best.” While the twins were still in the hospital, a nurse told Alyssha to call Dr. Gross and set up an appointment for the boys to have their eyes examined. She did, and the appointment was set for February 17. When she made the appointment, Dr. Gross’s office did not mention the need for a referral. Alyssha had no idea why the Hunter needed to have his eyes examined other than simply because he was premature. Her only understanding was that “premature infants had to go” for ophthalmic exams.
Dr. Gross’s office called Alyssha on Friday, February 14, before the scheduled Monday February 17 appointment, and told her that the office did not have the referral papers necessary for the appointment. The morning of the February 17, Alyssha talked with Dr. Yee’s office and learned that the referral could not be completed in time for Hunter’s eye appointment that afternoon. Alyssha called Dr. Gross’s office and relayed this information; she was told to reschedule the appointment. She rescheduled it for February 28, but Hunter was in the hospital on that date with a virus.
Hunter’s referral to Dr. Gross by Dr. Yee lists the patient’s name as “Hunter W. Taylor (Burt)” and indicates that his parents are Alyssha Taylor and Keith Burt.4 Dr. Gross testified that upon receiving such a referral, his office should have checked under the last name of both Taylor and Burt to see if a corresponding appointment existed. Dr. Gross explained:
[I]f somebody’s been seen in the hospital, then when we receive a call from the parent to schedule an appointment for a baby by the same name, then when we go to schedule that appointment, we immediately know that they’ve been to see us before, because they’re in our filing system already.... And that appointment is scheduled as a folloiv-up appointment. And we know exactly why the patient’s coming in because we’ve already seen them before. [Emphasis added.]
The reasonable inference from this testimony by Dr. Gross is that at the time Alyssha communicated with Dr. Gross’s office on February 14 and 17, Hunter was not a “new patient,” he was an existing ROP patient who had already been seen in the hospital and needed a follow-up appointment.
Maria Rodriguez, Dr. Gross’s receptionist in February 1997, testified that Dr. Gross’s office obtained phone numbers for patients when they called in to schedule an appointment. Sometimes, she would obtain the patient’s address, “just to get the medical records started.” When Rodriguez had time, she called to confirm appointments. If she knew what insurance the patient had, she would remind the patient to bring a referral form. Rodriguez testified that Dr. Gross’s office had a policies and procedures manual, which re*246quired that the parent be contacted by phone or postcard when a patient did not show up for an appointment. Although Dr. Gross testified that babies seen in the hospital were scheduled as follow-up appointments, not as new patients, Alyssha was not contacted by Dr. Gross’s office concerning either of the appointments that Hunter missed.
Jimmie McMurray testified that in February 1997, she worked in Dr. Gross’s office doing insurance billing. She said that after Dr. Gross performed a ROP initial evaluation, he completed a form that included the patient’s name, address, and telephone number. He would bring that form back to his office and give it to McMurray. The ROP evaluation form for Hunter shows that “[Alyssha] Taylor [and] [Keith] Burt”5 are his parents and provides a address and phone number for the patient. Dr. Gross’s records concerning Hunter indicate that Hunter was a “preemie,” i.e., a premature baby.
Dr. Yee knew monitoring the twins’ vision was important, but he expected Dr. Gross to examine the twins and then to tell him when they needed to be seen again. The “Dear Parent” letter demonstrates Dr. Gross’s agreement to do just that. The letter explains that an in-hospital eye examination is scheduled and that this exam is performed on babies meeting certain birth weight and prematurity standards. It states, ‘You will be contacted by your baby’s pediatric ophthalmologist if any significant findings are detected which would in any way affect your baby’s health or vision.” The letter goes on to state, “In specific circumstances, your pediatric ophthalmologist may request another ophthalmologist consultant to also check you baby’s eyes. Robert D. Gross, M.D., is the Pediatric Ophthalmologist who staffs our NICU.” [Emphasis added.] Dr. Gross knew the neonatologist group was using this letter, and Dr. Gross told them “that that was fine with me.”
I agree with the majority’s recitation of historical Texas law that a medical malpractice claim is predicated on the existence of a physician-patient relationship. See, e.g., St. John v. Pope, 901 S.W.2d 420, 423 (Tex.1995). Where no prior relationship exists, the doctor must take some affirmative step to treat the patient before a relationship can be established. Ortiz v. Shah, 905 S.W.2d 609, 611 (Tex.App.Houston [14th Dist.] 1995, writ denied); Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex.App.-San Antonio 1993, no writ). Once such a relationship exists, however, the physician owes the patient a duty to treat him or her with the skills of a trained, competent professional, and a breach of that duty may give rise to a malpractice action. Reynosa v. Huff, 21 S.W.3d 510, 513 (Tex.App.-San Antonio 2000, no pet.).
Here, it is undisputed that an initial physician-patient relationship existed between Dr. Gross and Hunter with respect to Hunter’s ROP. Consequently, I believe that the issues before us are whether the evidence proves as a matter of law that the relationship was terminated and whether the evidence, viewed in the light most favorable to Hunter, constitutes more than a scintilla of evidence of a continued physi*247cian-patient relationship with respect to Hunter’s ROP. The cases relied upon by the majority, however, address only whether an initial physician-patient relationship was created, not whether an existing physician-patient relationship later continued or was terminated. See, e.g., Majzoub v. Appling, 95 S.W.3d 432, 437 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (op. on reh’g) (recognizing that no physician-patient relationship was created when “there was no prior physician-patient relationship between Mr. Majzoub and Dr. Appling,” Dr. Appling never saw, talked to, or examined Majzoub, and Dr. Appling did not proffer a medical diagnosis of Majzoub’s condition or make any medical decisions regarding Majzoub); Jackson v. Isaac, 76 S.W.3d 177, 182 (Tex.App.-Eastland 2002, pet. denied) (holding no physician-patient relationship was created when doctor had never examined patient and patient failed to “show up” for medical treatment because he died before first scheduled appointment with doctor); Ortiz, 905 S.W.2d at 611 (holding no physician-patient relationship was created when on-call doctor never examined patient, talked to him, or gave advice to anyone in emergency room about patient); Day v. Harkins & Munoz, 961 S.W.2d 278, 281 (Tex.App.-Houston [1st Dist.] 1997, no writ) (holding no physician-patient relationship was created when doctors who agreed only to provide emergency and first aid care to patrons at a concert never treated patient at concert). Consequently, these cases are factually distinguishable from the present case.
The St. John case is instructive. In St. John, an emergency room doctor phoned the hospital’s on-call physician, Dr. St. John, a board-certified internist, and described the patient’s symptoms. 901 S.W.2d at 421-22. Dr. St. John determined that the hospital was not equipped to treat the patient and recommended that the patient be referred to another hospital. Id. at 422. The supreme court held that the duty to treat a patient with proper professional skill flows from the consensual relationship between the patient and the physician. Id. at 423. The supreme court held that, as a matter of law, no physician-patient relationship existed between Dr. St. John and the patient because Dr. St. John never agreed to treat the patient. The supreme court explained:
Although St. John listened to Suarez’s description of Pope’s symptoms, and came to a conclusion about the basis of Pope’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. at 424 (emphasis added). The supreme court further explained that “[i]t is only with a physician’s consent, whether express or implied, that the doctor-patient relationship comes into being.” Id. at 423.
Although St. John also involved the initial formation of the physician-patient relationship as opposed to the continuation or termination of that relationship, the supreme court’s analysis focused on two factors that are also applicable to the continuation and termination issues: whether the doctor diagnosed the patient for a course of treatment and whether the doctor expressly or impliedly consented to accept the patient to administer the course of treatment. Focusing on these two factors in addressing whether the physician-patient relationship between Dr. Gross and Hunter continued following Dr. Gross’s in-hospital examination and diagnosis of Hunter, more than a scintilla of evidence exists that Dr. Gross diagnosed Hunter for a course of treatment that he, Dr. Gross, intended to provide.
Dr. Gross examined Hunter in the hospital, diagnosed him with ROP, and knew *248that Hunter required follow-up appointments with a pediatric ophthalmologist. Dr. Gross recommended a follow-up appointment in two weeks — with himself. He did not tell Alyssha or anyone at the hospital that the follow-up appointments should not be scheduled with him. Dr. Gross voluntarily approved a letter identifying himself as “your pediatric ophthalmologist,” knowing the letter would be attached to Hunter’s basinet in the hospital. Dr. Gross took Hunter’s ROP screening form to his office so Hunter could be entered as an existing patient for ROP follow-up appointments. Alyssha called, scheduled, and rescheduled appointments for Hunter with Dr. Gross. Thus, more than a scintilla of evidence exists that, unlike Dr. St. John, Dr. Gross did see and evaluate the patient, i.e., Hunter, to diagnose him for a course of treatment.
Likewise, more than a scintilla of evidence exists that Dr. Gross either expressly or impliedly consented to the continuation of his physician-patient relationship with Hunter. Dr. Gross and Dr. Burke both recognized that the standard of care required a pediatric ophthalmologist to conduct follow-up appointments with Hunter. The “Dear Parent” letter approved by Dr. Gross constitutes some evidence that Dr. Gross voluntarily continued to be Hunter’s pediatric ophthalmologist with respect to the ROP follow-up appointments. The majority discounts the “Dear Parent” letter, noting that Hunter’s parents did not rely upon it. Maj. Op. at 224-25. But viewed in the light most favorable to Hunter, this letter, approved by Dr. Gross, nonetheless constitutes evidence that Dr. Gross perceived his physician-patient relationship with Hunter with respect to the treatment of Hunter’s ROP as ongoing, that he consented to the ongoing nature of the relationship, and that he did not intend to terminate the relationship when Hunter left the hospital. Dr. Burke testified that it was Dr. Gross’s responsibility to make sure that the follow-up exams on Hunter were carried out — further evidence of the continuing nature of Dr. Gross’s relationship with Hunter.
Additionally, the fact that Dr. Gross utilized a specific form when he performed in-hospital ROP exams on premature newborns, provided that form to his office insurance billing employee, and had the newborn’s information entered into his computer system as an existing patient likewise constitutes some evidence that Dr. Gross’s physician-patient relationship with Hunter continued. Dr. Gross himself testified that for a follow-up appointment “we know exactly why the patient’s coming in because we’ve already seen them before,” i.e., that an ongoing physician-patient relationship exists. Finally, the fact that Dr. Gross’s office followed a specific procedure when a premature infant missed a scheduled ROP follow-up appointment — calling the parent or sending a card' — constitutes more than a scintilla of evidence of Dr. Gross’s consent to the continuation of his physician-patient relationship with these premature babies, including Hunter.
B. Termination Not Established as a Matter of Law
There is also some evidence that Alys-sha terminated the physician-patient relationship between Dr. Gross and Hunter. She did not reschedule the February 28 appointment that Hunter missed when he was in the hospital with a virus. Eventually, in June 1997, Hunter finally obtained an ROP follow-up examination with another pediatric ophthalmologist where he was diagnosed as legally blind. But, this one fact — Alyssha’s failure to reschedule the February 28 appointment after scheduling the February 17 and February 28 appointments — does not establish termination as a matter of law in light of the evidence *249outlined above supporting the deemed finding of a continued physician-patient relationship between Dr. Gross and Hunter. Because the jury could have reasonably concluded from the evidence that the physician-patient relationship between Dr. Gross and Hunter continued, termination was not conclusively established as a matter of law. See, e.g., Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994) (recognizing that the test for conclusive evidence is similar to the test for no evidence in that the court asks whether reasonable minds could differ about the fact determination to be made by the jury).
The trial court here found, and the parties agreed, that a physician-patient relationship existed as a matter of law between Dr. Gross and Hunter with respect to Hunter’s ROP at the time of the in-hospital examination. Based on the record before us, viewing all of the evidence in the light most favorable to Hunter and disregarding all contrary evidence and inferences, I would hold that the evidence is legally sufficient to support the deemed finding that this relationship continued after Dr. Gross’s in-hospital examination of Hunter. I would also hold that the evidence does not conclusively establish termination of the physician-patient relationship between Hunter and Dr. Gross because reasonable minds can differ on this issue. I would therefore overrule Dr. Gross’s first issue and proceed to address the other issues raised by Dr. Gross in this appeal.
C. Legal Sufficiency Review Does Not Result in Expanded Duty
In its conclusion concerning Dr. Gross’s appeal, the majority theorizes that to hold sufficient evidence exists supporting the deemed finding that the physician-patient relationship between Dr. Gross and Hunter continued would “expand the duty of continued care to all patients who are seen at hospitals by consulting physicians beyond the hospital setting.” Maj. Op. at 227. I must respectfully disagree. Two main facts remove this case from the general category of cases referenced by the majority: cases where a “duty of continued care [would be owed] to all patients who are seen at hospitals by consulting physicians beyond the hospital setting.” Maj. Op. at 227. First, the “Dear Patient” letter approved by Dr. Gross specifically labeling him as “your pediatric ophthalmologist” removes this case from this general category of cases. Second, the guidelines set by The American Academy of Pediatrics, the American Association for Pediatric Ophthalmology and Strabismus, and the American Academy of Ophthalmology, and recognized by Dr. Gross as constituting the standard of care likewise remove this case from this general category of cases referenced by the majority. The standard of care requires that infants with ROP, like Hunter, “be seen at least every 1 to 2 weeks until normal vascularization proceeds to Zone III or the risk of attaining threshold conditions is passed.” Thus, a pediatric ophthalmologist, like Dr. Gross, making a diagnosis of ROP in the hospital knows when the diagnosis is made that the standard of care requires very rapid follow-up appointments. A doctor who sees a patient in the hospital, diagnoses the patient for a course of treatment, holds himself out in writing as the patient’s doctor, recommends follow-up treatment for the patient with himself, understands that the standard of care requires immediate follow-up treatment, and is said by an expert to be responsible for taking steps to make sure the follow-up treatment occurs, is not simply a consulting physician. I cannot agree that holding the evidence legally sufficient to support the deemed finding of a continued physician-patient relationship between Dr. Gross and Hunter would con*250stitute a expansion of the duties imposed on any consulting doctor who does not diagnose a patient for a course of treatment, does not hold himself out in writing as the patient’s doctor, does not recommend follow-up treatment for the patient with himself, and does not admit that the standard of care requires that follow-up treatment occurs.
III. Conclusion
Because more than a scintilla of evidence exists supporting the jury’s implied finding that Dr. Gross’s physician-patient relationship with Hunter continued after Dr. Gross’s in-hospital examination of Hunter, and because the evidence does not conclusively establish termination of that relationship, I would overrule Dr. Gross’s first issue and proceed to address his remaining issues on rehearing en banc.
Before the court en banc.
. I do not believe, however, as urged by the opinion dissenting to the denial of en banc rehearing as to Dr. Gross, that en banc rehearing is necessary to determine the burden of proof to establish termination of or the ending of Dr. Gross's physician patient relationship with Hunter. Dr. Gross bore that burden.
. If there is evidence of termination of a physician-patient relationship, section 50.6 of the Texas Pattern Jury Charges provides that the following may be submitted:
A physician-patient relationship does not exist when either the physician or the patient has terminated the relationship. A patient may terminate the relationship at any time. The physician may terminate the relationship at any time if reasonable provision for adequate medical care is made or if the patient is not in need of continuing medical care.
3 Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 50.6 (2d ed. 2002).
. Dr. Gross testified that, after he examined Hunter in the NICU, he recommended followup on Hunter because Hunter had ROP. Dr. Gross was asked:
Q. Dr. Gross, using your definition of the standard of care, do you agree that in February of '97 the standard of care required that Hunter be followed up by a pediatric ophthalmologist because he had a finding of immature retina?
A. Yes.
Dr. Gross testified that he recommended a follow-up exam in two weeks. Alyssha scheduled an appointment with Dr. Gross before Hunter left the hospital.
. At trial, Dr. Gross denied receiving the February 19 referrals for Hunter because "[w]e have no record of these referrals ever having been received.” But he was impeached with his deposition testimony that it was not safe to assume that the referrals were never received simply because the pink referral sheets were not located in his office. He testified that "they may have been sent. Referrals are only good for 60 days. So they may have been received and discarded after they were expired.” Dr. Yee testified that, although he did not remember sending this specific referral to Dr. Gross, his usual practice would be to fax or mail the referral or to have the patient come pick it up before the appointment.
. Thus, both Hunter’s referral form from Dr. Yee, which Dr. Gross may or may not have received, and Dr. Gross’s own ROP screening form which Dr. Gross himself completed in the hospital and provided to his office personnel, showed that Hunter’s parents were “[Alyssha] Taylor [and] [Keith] Burt.” Viewed in the light most favorable to Hunter, there is not an “intervening identification issue” with Dr. Gross's office as to Hunter’s last name as the majority contends. Maj. Op. at 227. Even Dr. Gross conceded his office should have checked under both last names and a reasonable inference exists that a newborn will use either his mother’s or his father's last name.