dissenting from denial of motion for rehearing en banc as to Robert Gross, M.D.
I respectfully dissent from the denial of Appellees’ motion for rehearing en banc as to Dr. Gross. First, I simply believe this case presents an issue of extraordinary circumstances requiring an en banc review by this Court.1 That issue is whether the physician-patient relationship continued during the pertinent time in question after Dr. Gross performed the ROP screen on Hunter and provided his report and recommendations to Dr. Smith. This appears to be a case of first impression involving an increasingly common issue of the extent of a physician-patient relationship arising out of consultation by a specialist in the hospital setting. An appellate court in another jurisdiction recently noted “the in*251creasing complexity of the managed health care system, in which patients routinely are diagnosed by pathologists or radiologists or other consulting physicians” in determining whether a physician-patient relationship exists.2
There appears to be no reported case involving a disputed issue of whether a physician-patient relationship with a consulting or on-call specialist extended beyond an examination or treatment in the hospital setting; much less is there a case dealing with this issue involving additional factors such as those present here. The importance and novel nature of the issue is underscored by the stated reluctance of the panel’s majority opinion to “expand the duty of continued care to all patients who are seen at hospitals by consulting physicians beyond the hospital setting based solely upon the fact that they were seen by the physician in the hospital” because such a holding would create a never-ending duty. See Maj. Op. at 227-28. While I agree that the sole factor of just seeing a patient as a consulting physician may not be enough, this case involves additional factors that should be considered together to determine whether the evidence establishes an extended physician-patient relationship here. And I do not believe the majority’s fear is well-founded that the creation of a never-ending relationship would be the necessary result of holding that a fact issue exists in this case.
Dr. Gross does not dispute that a physician-patient relationship was created with Hunter by his agreement with the hospital to act as the consulting pediatric ophthalmologist, his participation in the Burts’ managed care plan, and his taking of affirmative action to perform the ROP screening on Hunter in the hospital. But this ease involves more than a single consultation. This case involves also setting up an appointment for a “follow-up” office visit with Dr. Gross after Hunter’s discharge, a call from Dr. Gross’s office to remind the mother of the appointment and need for a referral, a rescheduling of the appointment, setting up a chart on Hunter by Dr. Gross at his office with a view toward follow-up visits, and the “Dear Parents” letter that arguably refers to Dr. Gross as the pediatric ophthalmologist who was to contact the parents regarding any significant finding.
Additionally, recognizing that the evidence raised an issue of fact as to the existence of a continuing physician-patient relationship in this case would not create a never-ending duty because the context is that of a condition, Stage I ROP, that requires follow-ups weekly or every two weeks as mandated by a Joint Statement by the American Academies of Pediatrics, Pediatric Ophthalmology and Strabismus, and Ophthalmology only during a finite period of time until “threshold” is reached and the condition may be successfully treated, or until time for development of the condition and risk for untreated blindness passes.
I also believe this court should resolve en banc the issue of who had the burden of proof on the issue of the continuation of the physician-patient relationship. The Burts and the dissenting member of the panel urge that the issue is one of “termination,” an affirmative defense on which Dr. Gross bore the burden of proof and submission. Dr. Gross, however, contends that his physician-patient relationship with Hunter was merely limited in time, ending *252on February 8,1997, after he had screened Hunter and furnished his findings and recommendations to Dr. Smith. He denies that it continued or was extended after Hunter’s discharge.
A plaintiff has the burden to prove four elements in a medical malpractice cause of action: (1) a duty owed by the physician to act according to a certain standard of care; (2) breach of the applicable standard; (3) injury; and (4) proximate cause.3 The duty normally flows from the physician-patient relationship.4 Although duty is a question of law, the predicate existence of facts establishing a physician-patient relationship at the time of the breach may be a question of fact, and the existence of a physician-patient relationship is essential to a plaintiffs cause of action for medical malpractice.5 As such, as stated by Justice Peeples in Rampel v. Wascher, it is the patient’s burden to prove the existence of the physician-patient relationship in a medical malpractice case when that issue is disputed.6
Once the initial physician-patient relationship is established, the physician’s duty ordinarily extends to treating the patient as long as attention is needed or until the patient discharges the doctor or the patient is given reasonable notice and an opportunity to secure other medical attention.7 Because an initial physician-patient relationship was established between Dr. Gross and Hunter while Hunter was still in the hospital, it follows that Dr. Gross must accept the duties that flow from that relationship.8 Indeed, it has been held that it is the plaintiffs burden to request issues establishing that termination of a relationship by a physician was negligent or wrongful and resulted in damages.9 In contrast, here the only dispute was whether the relationship continued after the screening. Thus, it would appear that the correct issue was whether the physician-patient relationship existed at the times of the alleged breaches of duty. I would hold with the majority of the panel that the burden was on the Burts to establish the *253continuation of the existence of the physician-patient relationship at the time of the alleged breach of duty by Dr. Gross, rather than placing the burden on Dr. Gross to establish that the relationship was terminated.10
Under rule 279, the trial court may make an express finding in support of the judgment if a charge was submitted on a cause of action or defense consisting of more than one element, if the party with the burden of -proof on the cause of action did not request a missing element, if the opposing party fails to object to the missing element, if the missing element is “necessarily referable” to the submitted cause of action or defense, and if there is factually sufficient evidence to support the missing element.11 By not objecting, the parties waive a jury finding on the omitted issue, but they implicitly agree to submit the issue to the trial court.12 If the trial court does not make an express finding after trial, the appellate court will “deem” the omitted element found in support of the judgment if there is legally and factually sufficient evidence to support it.13 If the opposing party objected to the missing element, the element cannot be deemed found in support of the judgment, and the absence of a finding forecloses the right of recovery or defense on the theory submitted unless the missing element is established as a matter of law.14
Because the existence of the physician-patient relationship was not requested and there was no objection, that element must be “deemed” found in support of the judgment unless there was legally or factually insufficient evidence to support such a deemed finding. Both expressly and by virtue of the language of that rale, Dr. Gross retained the right to challenge the deemed finding after verdict based on legally and factually insufficient evidence.15 Whether a physician-patient relationship exists is particularly fact-driven and is most often held to be a fact issue for the jury under the particular facts and circumstances of each case.16 For all of these *254reasons, I would grant the motion for rehearing en banc as to Dr. Gross.
. See Tex.R.App. P. 41.2(c).
. Kelley v. Middle Tenn. Emergency Physicians, P.C., 133 S.W.3d 587, 596 (Tenn.2004) (holding physician-patient relationship could be based upon "implied consent” as to consultation by emergency room physician with on-call cardiologist covering for patient’s absent treating cardiologist).
. Majzoub v. Appling, 95 S.W.3d 432, 436 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (op. on reh’g); Lection v. Dyll, 65 S.W.3d 696, 703-04 (Tex.App.-Dallas 2001, pet. denied) (op. on reh’g).
. See St. John v. Pope, 901 S.W.2d 420, 423 (Tex.1995); Jackson v. Isaac, 76 S.W.3d 177, 179 (Tex.App.-Eastland 2002, pet. denied); Lopez v. Aziz, 852 S.W.2d 303, 305-06 (Tex.App.-San Antonio 1993, no writ); Salas v. Gamboa, 760 S.W.2d 838, 840 (Tex.App.-San Antonio 1988, no writ) (stating that duty flows from relationship).
. See St. John, 901 S.W.2d at 423; Jackson, 76 S.W.3d at 179 (both noting that no duty exists absent physician-patient relationship); Lection, 65 S.W.3d at 704 (stating that physician is liable only where there is physician-patient relationship); see also Kelley, 133 S.W.3d at 592 (noting and citing cases in which courts have recognized existence of relationship as "essential” or "necessary” element of plaintiff’s medical malpractice cause of action); accord Weaver v. Univ. of Mich. Bd. of Regents, 201 Mich.App. 239, 506 N.W.2d 264, 265 (1993) (stating that professional relationship is “legal prerequisite” to cause of action for medical malpractice).
. 845 S.W.2d 918, 921 (Tex.App.-San Antonio 1992, writ denied) (citing Wilson v. Winsett, 828 S.W.2d 231, 232 (Tex.App.-Amarillo 1992, writ denied) and Salas, 760 S.W.2d at 840).
. Lee v. Dewbre, 362 S.W.2d 900, 902 (Tex.Civ.App.-Amarillo 1962, no writ); Urrutia v. Patino, 297 S.W. 512, 516 (Tex.Civ.App.-San Antonio 1927, no writ); see generally, 1 J. Hadley Edgar, Jr. & James B. Sales, Texas Torts & Remedies § 11.01 [l][c] (2004).
. See Wheeler v. Yettie Kersting Mem'l Hosp., 866 S.W.2d 32, 40 (Tex.App.-Houston [1st Dist.] 1993, no writ).
. Traylor v. Goulding, 497 S.W.2d 468, 472 (Tex.Civ.App.-Houston [1st Dist.] 1973), rev’d on other grounds, 497 S.W.2d 944 (Tex.1973).
. The period in issue is the period after the ROP screening of February 8, and after Hunter’s discharge, during which Hunter could have been monitored and treated for the ROP, at least as testified to by the Burts’ experts. I believe it is clear that the Burts terminated any relationship when they decided after the second missed appointment with Dr. Gross to seek care from another pediatric ophthalmologist. But by that time the window of opportunity had closed.
. Tex.R. Civ. P. 279; Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 565 (Tex.2002); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997); Wal-Mart Stores, Inc. v. Renteria, 52 S.W.3d 848, 850 (Tex.App.-San Antonio 2001, pet. denied).
. Gulf States, 79 S.W.3d at 565.
. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995); Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990).
. Olivo, 952 S.W.2d at 529; McKinley v. Stripling, 763 S.W.2d 407, 410 (Tex.1989).
. Rule 279 expressly states that “factually sufficient evidence” is a prerequisite to a deemed finding as follows:
[If] one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon .... such omitted element or elements shall be deemed found by the court in such manner as to support the judgment.
Tex.R. Civ. P. 279 (emphasis added).
. See Rampel, 845 S.W.2d at 920; see also Kelley, 133 S.W.3d at 598 (noting that whether physician-patient relationship exists is generally a question of fact in medical malpractice cases); Irvin v. Smith, 272 Kan. 112, 31 P.3d 934, 941 (2001) (stating whether that relationship exists is generally an issue for jury); See generally, James L. Rigelhaupt, Jr., Annotation, What Constitutes Physician-Patient Relationship for Malpractice Purposes?, 17 A.L.R.4& 132 (1982 & Supp.2004).