dissenting: I respectfully dissent from the majority’s affirmance of the district court’s grant of summary judgment to Dr. Gilmartin. Without noting the various types of physician consultants, the majority creates a broad public policy physician-*132consultant exception to the physician-patient relationship by stating a “physician cannot be hable for medical malpractice where he or she merely consulted with a treating physician and nothing more.” 272 Kan. 112, Syl. ¶ 5.
The majority recognizes that summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the appellate court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. See Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
The facts stated by the majority are that during the evening of November 14, 1995, Dr. Smith called Gilmartin and asked him to consult on Irvin’s case. The working diagnosis at the time was new onset seizure disorder, with concern over possible shunt malfunction. The two doctors discussed the case and it was agreed that Gilmartin would see the patient the next morning, carry out a formal consultation, and assist in conducting the diagnostic test known as a shuntogram. Gilmartin’s position is that he had no duty as a physician until he assumed a physician-patient relationship with Irvin on the morning of November 15, 1995, and, without a legal duty, there can be no compensable negligence.
The majority asserts that the sole involvement of Gilmartin was as a private practitioner who had been asked to cany out a formal consultation the following day. The majority states that a formal consultation requires (1) a full bedside review of the case and (2) a physical examination of the patient. The majority notes that at the time Gilmartin spoke with Smith, Gilmartin had not examined *133Irvin, had not reviewed her hospital chart, and had never spoken with her or her parents. The only information he had was what Smith had told him. The majority observes that there is no claim that Gilmartin entered any orders in the case or took any other action other than discussing the case in general terms with Smith and agreeing to “formally” consult the next day.
After disregarding facts favorable to the plaintiff and our prior law that the creation of the physician-patient relationship is a question of fact, the majority reveals its intent to create public policy by stating: “This case, to a large extent, boils down to public policy concerns. The type of telephone conversation that took place here takes place on a frequent basis in the medical profession and is vital to the treatment of patients. For the courts to discourage such conversations is not to the patients’ or the public’s best interests.” 272 Kan. at 123. The majority further states: “Courts have taken these public policy concerns to heart and have routinely refused to extend liability for medical malpractice to doctors who have acted solely in the role of an informal or curbside consultant.” 272 Kan. at 124. Then, the majority makes a contradictory assertion: “This has been true even when the doctors’ involvement in giving advice to the attending physician has been very extensive.” 272 Kan. at 124.
Citing Millard v. Corrado, 14 S.W.3d 42, 49 (Mo. App. 1999), the majority asserts that generally, a physician-patient relationship is created only where the physician personally examines the patient. The majority then acknowledges our contrary statement in Adams v. Via Christi Regional Medical Center, 270 Kan. 824, 835, 19 P.3d 132 (2001), that a physician’s indirect contact with apatient does not preclude the finding of a physician-patient relationship. The majority acknowledges that a physician-patient relationship does not require a formal contract and may be implied by the circumstances. It notes that a physician-patient relationship may be found where a physician is contacted by someone on behalf of the patient. The majority states that an implied physician-patient relationship may be found where the physician gives advice to a patient by communicating the advice through another health care professional. 272 Kan. 112, Syl. ¶ 4.
*134Ignoring the law it has just acknowledged, the majority asserts that a physician who gives an informal opinion at the request of a treating physician does not owe a duty to the patient because no physician-patient relationship is created. It points out that a physician cannot be hable where he or she merely consults with a treating physician and nothing more.
Then, to reach its public policy decision, the majority disregards the Kansas statutoiy rule for granting summary judgment, the existence of facts favorable to the plaintiff, and prior Kansas case law regarding the question of whether a physician-patient relationship exists, concluding that Gilmartin was under no legal duty to go to the hospital on November 14, 1995; thus, his failure to act cannot constitute a breach of duty to support a claim of negligence. 272 Kan. at 125.
Irvin argues to this court that the district court erred in granting summary judgment to Gilmartin. Irvin asserts that the undisputed facts show that a physician-patient relationship existed between Gilmartin and Irvin. The record on appeal shows that Gilmartin was called by Irvin’s treating physician, Smith because of Gilmartin’s experience and expertise as a pediatric neurologist. Gilmartin was not an employee of the hospital and was not “on call” the night he received the phone call from Smith. Gilmartin and Smith had a detailed conversation about the condition, care, and treatment of Irvin. The majority fails to take into account Gilmarün’s testimony that during the telephone conversation Gilmartin and Smith “jointly developed a plan for the evaluation of Ashley Irvin,” and Gilmartin agreed to assume primary responsibility for performing the shuntogram tests the next day.
Plaintiff s two expert witnesses each testified that such a detailed consultation often occurs in the course of a telephone call between physicians. The experts stated that by discussing the case with Smith and jointly formulating a treatment plan and agreeing to perform the shuntogram test die next day, Gilmartin established a physician-patient relationship with Irvin and, therefore, Gilmartin owed a duty to Irvin. Plaintiff s experts stated that the conversation between the two physicians provided Gilmartin a “complete picture of Ashley Irvin’s presentation,” and Gilmartin incorrectly sur*135mised that Irvin’s condition was “stable” and negligently delayed Irvin’s shuntogram procedure until the next day.
In Adams, we recently discussed the foundational requirements for the existence of a physician-patient relationship, stating:
“A physician-patient relationship is consensual. Thus, where there is no ongoing physician-patient relationship, die physician’s express or implied consent to advise or treat die patient is required for the relationship to come into being. Stated odierwise, the doctor must take some affirmative action widi regard to treatment of a patient in order for the relationship to be established.” 270 Kan. at 835.
Most confusing is the majority’s broad statement that a physician who gives an “informal opinion” at the request of a treating physician does not owe a duty to the patient because no physician-patient relationship is created. 272 Kan. at 120. The majority fails to note the difference between an “informal opinion” and a “formal opinion.” It also fails to recognize that there are consulting physicians whose role in a patient’s case is limited to offering an opinion or suggestion to the treating physician and there are consulting physicians who advise treating physicians by aiding them in formulating a treatment plan for the patient.
In reaching its public policy decision, the majority relies on Reynolds v. Decatur Memorial Hosp., 277 Ill. App. 3d 80, 660 N.E.2d 235 (1996). The majority states that the facts in Reynolds are strikingly similar to the facts of the present case. I disagree.
In Reynolds, the examining physician telephoned a second physician at home seeking advice on diagnosing a child, and the second physician’s only participation in the treatment of the child was his suggestion that a particular test be conducted to rule out certain illnesses. The first physician allegedly misdiagnosed the child’s illness, and the second physician was made a defendant, in the medical malpractice lawsuit.
The Reynolds court-held that there was no physician-patient relationship between the second physician and the patient, nor any duty owed by that physician, because he gave an “informal opinion” at the request of the treating physician. 277 Ill. App. 3d at 85. The Illinois court noted that Reynolds was not a case where a physician was asked to provide a service for the patient, conduct laboratory tests, or review test results; the physician “did nothing more than *136answer an inquiry from a colleague.” 277 Ill. App. 3d at 85. The Illinois court distinguished the case from one where a physician accepts a referral of the patient. 277 Ill. App. 3d at 85.
The majority fails to note that 2 years later, in Bovara v. St. Francis Hospital, 298 Ill. App. 3d 1025, 1030-33, 700 N.E.2d 143 (1998), a case factually similar to our case, the Illinois court limited Reynolds and reversed a trial court’s grant of summary judgment, holding that genuine issues of material fact existed as to whether two physicians owed a duty of care to the patient. It noted that at the request of the patient’s cardiologist, the consulting physicians had reviewed the patient’s angiogram film and communicated to the cardiologist that the patient was a candidate for coronary angioplasty. The Bovara court noted that while the consulting physician in Reynolds had suggested a test and was not responsible for any portion of the patient’s diagnosis or treatment, the doctors in this case reviewed the patient’s test results and interpreted them. The Bovara court found an analogy between its facts and cases where a radiologist or a pathologist, who have no actual contact with patients, enter into a physician-patient relationship when they perform a service for the care and treatment of a patient. 298 Ill. App. 3d at 1030-31. In reaching its decision, the Illinois court reasoned:
“Similarly, a trier of fact might conclude that Drs. Bliley and Edgett [consulting physicians] performed a service for Bovara as part of a CRC team of physicians. Drs. Pascale [primary physician], Bliley and Edgett were employees and associates of St. Francis Hospital and CRC. Drs. Bliley and Edgett knew or should have known that Dr. Pascale was not trained to read angiograms and did not perform angioplasty operations. The trier of fact may find that, when they received the angiogram that came from Dr. Pascale, they knew or should have known that their medical opinion would be passed on to the patient by Dr Pascale. If their medical opinion would have been diat Bovara was not a candidate for an angioplasty operation, it was probable that diere would not have been an angioplasty operation. On die other hand, if dieir medical opinion was diat Bovara was a candidate for an angioplasty operation, it was probable that Dr. Pascale would inform Bovara diat he could have an angioplasty procedure. In any event, the trier of fact could find that Drs. Bliley and Egett knew or should have known that their medical opinion was crucial to Bovara.” (Emphasis added.) 298 Ill. App. 3d at 1031.
The majority also relies on NBD Bank v. Barry, 223 Mich. App. 370, 566 N.W.2d 47 (1997), to support its premise that where a *137consulting physician engages in informal consultations with the treating physician, the consulting physician owes no duty of care to the patient. While I would not disagree with the premise, I note that the NBD court relied on and quoted from an earlier Michigan case, Hill v. Kokosky, 186 Mich. App. 300, 463 N.W.2d 265 (1990), which stated:
“ ‘Neither defendant knew, examined, or spoke with plaintiffs. [The patient] was not referred to defendants for treatment or consultation. Plaintiffs did not employ defendants, nor did they seek medical advice or treatment from defendants. Defendants’ medical opinions were addressed directly to [the treating physician] as a colleague, and not indirectly to plaintiffs as patients. The opinions were not in the nature of a prescribed course of treatment, but were recommendations to be accepted or rejected by Dr. Hole as he saw fit.’ [186 Mich. App. at 304.]” NBD, 223 Mich. App. at 372-73.
Based on these facts, the NBD court concluded the consulting physician simply recommended a course of treatment that the treating physician was free to accept or reject, the consulting physician did not agree to treat the patient or to be a consultant on the case, and the consulting physician did not owe a duty of care to the patient. 223 Mich. App. at 373.
Both Reynolds and NBD are factually distinguishable from this case. Here, Gilmartin knew that his advice to Smith would directly affect Smith’s course of treatment of Irvin and Gilmartin agreed to personally perform the shuntogram. In addition, Gilmartin not only gave medical advice and options to Smith, but also Gilmartin agreed to assist with the treatment of Irvin. Gilmartin’s decision to delay the shuntogram until the next day had a direct impact on Irvin’s treatment and, consequently, her injury.
I find the reasoning in Diggs v. Arizona Cardiologists, Ltd., 198 Ariz. 198, 8 P.3d 386 (Ct. App. 2000), to be persuasive. After an emergency room physician consulted with the cardiologist, he released the patient who died of a heart attack 3 hours later. The Diggs court found that the cardiologist who informally consulted with the emergency room physician owed a duty of care to the patient brought to the hospital with severe chest pain. It noted that the lack of an express contractual physician-patient relationship between the cardiologist and the patient was not dispositive. It then *138observed that only the cardiologist had.the expertise to interpret the echocardiogram to rule out myocardial infarction on the basis of the electrocardiogram and determine further treatment. 198 Ariz. at 201-02.
The Diggs court reasoned that the cardiologist was in a unique position to prevent further harm to the patient. The cardiologist, with his superior knowledge and experience, was in the best position to correct any error in the emergency room doctor s diagnosis. 198 Ariz. at 202. In reaching its conclusion, the Diggs court relied on Restatement (Second) of Torts § 324A (1965), which provides:
“ ‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for die protection of a third person or his diings, is subject to liability to the diird person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases die risk of such harm, or . . . (c) the harm is suffered because of reliance of the odier or third person upon the undertaking.’
Thus, if an actor’s negligent undertaking ‘results in increasing the risk of harm to a diird person, die fact that he is acting under a , . . gratuitous agreement with another will not prevent his liability to die diird person.’ [Citation omitted.] Additionally, ‘[w]here die reliance of die odier, or of the third person, has induced him to forgo odier remedies or precautions against such risk, the harm results from the negligence as fully as if the actor had created the risk.’ [Citation omitted.]” 198 Ariz. at 202.
The Diggs court, taking the undisputed facts and all inferences therefrom in a light most favorable to Diggs, found that the consulting doctor undertook to provide his expertise to the treating physician, knowing that it was necessary for the protection of Diggs and that the treating physician would rely on it. The treating physician needed the specialized knowledge of the expert. The record indicated that the treating physician did not exercise independent judgment as to Diggs’ diagnosis; rather, he subordinated his professional judgment to that of the specialist. The court concluded that the specialist effectively became a provider of medical treatment to Diggs and that relationship gave rise to a duty of reasonable care. 198 Ariz. at 202-03.
*139“Consult” is a broad term meaning to seek advice or information; to refer to; to keep in mind or consider; to exchange views or confer; to give professional advice. A “consultant” is one who gives expert or professional advice or one who consults another. “Consultation” is the act or procedure of consulting; a conference at which advice is given or views are exchanged. Webster’s II New Riverside University Dictionary 303 (1988).
I do not disagree with the majority’s statement that where a physician-patient relationship exists, as a matter of law the physician owes a duty of care to tire patient; where a physician-patient relationship does not exist, the physician owes no duty of care. 272 Kan. at 119-20. However, whether a physician-patient relationship exists is a question of fact for the juiy. See Rule v. Cheesman, Executrix, 181 Kan. 957, 964-65, 317 P.2d 472 (1957).
To reach its conclusion, the majority characterized Gilmartin’s involvement as an informal consultant and cites the public policy of encouraging physicians to converse with other physicians regarding patient care. To reach its goal, the majority ignores the fact that Gilmartin’s involvement was more than informal. It was Gil-martin’s assessment and recommendations for care that directly influenced the course of Irvin’s treatment. Gilmartin, in consultation with Smith, determined that a shuntogram was necessary and agreed to perform the shuntogram the next day. These facts indicate a physician-patient relationship. During the telephone conversation, it was Gilmartin and Smith’s decision to wait until the next day to perform the shuntogram on Irvin. The decision to delay medical treatment caused Irvin’s injuries. Under our present law, Gilmartin should not be relieved of his physician-patient relationship merely because he had not yet met Irvin. The decision that delayed the care and treatment of Irvin until the next morning was based on Gilmartin’s experience and expertise.
The district court’s grant of summary judgment to Gilmartin should be reversed. Gilmartin’s actions on the night of November 14 and his agreement to perform the shuntogram on Irvin the next day are sufficient facts to submit to the jury the question of whether Gilmartin had a physician-patient relationship with Irvin.
Allegrucci, J., joins in the foregoing dissenting opinion.