concurring in part and dissenting in part.
The majority’s decision to uphold the grant of summary judgment under ORCP 47 in this case as to plaintiffs claims for damages for emotional harm appears to be constructed upon a three-pronged analysis: (1) plaintiff did not controvert defendants’ evidence that she was not exposed to any communicable disease when a syringe previously used on another patient was used to administer anesthesia to her. 171 Or App at 136-37; (2) Curtis v. MRI Imaging Services II, 327 Or 9, 956 P2d 960 (1998), does not permit recovery for emotional harm in the absence of physical injury except when there is evidence of a standard of care, and its holding compels affirmance in the absence of such evidence. 171 Or App at 136; and (3) plaintiff has not proved that the medical community recognizes a duty to prevent psychological harm under the existing circumstances. 171 Or App 136.1 disagree with the majority’s analysis for the reasons that follow.
For purposes of the ground asserted for summary judgment on which the majority agrees, defendants do not controvert any of the evidence produced by plaintiff at the summary judgment hearing, nor do they contest for purposes of the motion that they were negligent or that plaintiff suffered emotional harm as the result of her fear that she had contracted HTV or Hepatitis B from defendants’ treatment. In substance, they argue only that they had no legal duty to prevent the harm that plaintiff suffered, evén in light of plaintiffs evidence.
*140Thus, for the purpose of determining whether plaintiff suffered cognizable legal harm, the following facts are uncontradicted. After defendants’ negligence was discovered, plaintiff “underwent four immunization treatments in an effort to avoid contracting Hepatitis B.” Also, since the date of the surgery, she has undergone numerous blood tests for the presence of Hepatitis B and that “[s]o far the results have been negative.” Finally, she alleges that she has been tested three times for the presence of HIV since the surgery and that “[s]o far the results have been negative.” She seeks compensation for mental anguish suffered after the discovery that the syringe used in her treatment previously had been used in the treatment of another patient. Apparently, the period of time during which she suffered psychological harm includes the time while she was waiting for the results of her tests and the time afterwards. The issue then is whether the law will recognize her claim on these facts.
First, the majority’s focus on defendants’ affidavit is misplaced. Their affidavit avers that there is no reasonable probability that plaintiff has contracted any disease from the use of the syringe. However, plaintiff does not claim that she has been infected by HIV or Hepatitis B. Rather, she seeks compensation for the psychological harm she suffered because of the anguish of not knowing whether she had been exposed to those diseases. Consequently, defendant Taylor’s affidavit establishes a fact that has no legal consequence to plaintiffs theory. The resolution of defendants’ motion depends not on the affidavit, but on whether plaintiffs evidence, combined with the allegations of negligence and emotional harm that defendants do not contest for purposes of their motion, present circumstances from which a legally cognizable duty to prevent psychological harm arises.
Second, because Curtis is the linchpin to defendants’ arguments, a complete understanding of its holding is necessary. Curtis is a case in which the trial court entered judgment for the defendants on the pleadings, and the Supreme Court reversed. The plaintiff alleged only psychological injuries arising out of the defendant’s administration of an MRI test. The plaintiff alleged that the defendants had failed to warn him of the possible claustrophobic effects of the procedure, had failed to take a history of his preexisting asthmatic *141condition, had failed to properly monitor him during the course of the procedure and had failed to terminate the test when he complained of difficulties with breathing. His complaint also alleged that as a result of the defendant’s negligent performance of the test, the plaintiff suffers from a post-traumatic stress disorder, an adjustment disorder with depression, a general anxiety disorder and a panic disorder with agoraphobia. The court accepted review of the case “to consider whether, despite its failure to allege any physical injury, plaintiffs complaint nevertheless states a valid claim.” Curtis, 327 Or at 11.
The court began its analysis by ruling on the adequacy of the plaintiffs complaint:
“Recently, in Zehr v. Haugen, 318 Or 647, 653-54, 871 P2d 1006 (1994), this court described the elements that must be pleaded and proved in a medical malpractice claim: (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) a resulting harm to the plaintiff measurable in damages; and (4) a causal link between the breach and the harm. * * * Viewing the pleadings in this case in the light most favorable to the plaintiff (as we are obliged to do in reviewing a judgment on the pleadings issued pursuant to ORCP 21), plaintiff alleges all those elements here.”
327 Or at 14 (citation omitted). The court explained:
“Plaintiff has alleged that defendants performed a medical procedure on him, which is conduct that would give rise to a duty running to plaintiff to exercise that degree of care, knowledge and skill ordinarily possessed and exercised by the average provider of that type of medical service. In addition, it is possible to infer, from plaintiffs specific allegations of negligence, that particular aspects of the relevant standard of care were at issue; a duty to explain the nature of the procedure, to warn of its possible claustrophobic effects, to take an adequate medical history in order to discover any particular physical or psychological sensitivities that might be affected by the procedure, and, finally, to terminate the procedure if the patient begins to experience physical or psychological difficulties.”
*142Id. The court then turned to the import of plaintiffs failure to allege any physical injury arising from the defendants’ procedure:
“The fact that plaintiff alleges a standard of care that includes duties that specifically are directed at psychological difficulties, such as claustrophobia, rather than solely at physical ones, is not dispositive. Plaintiff is entitled to plead and prove that the distinction between physical and psychological effects is not always consonant with the thinking and conduct of medical professionals. Clearly, at least some conditions and events that the law deems to be purely psychological qualify as medical concerns in the mind of a medical professional. That being so, a medical professional may operate under a standard of care that includes a specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures. That is what plaintiff has alleged here.”
327 Or at 14-15. This paragraph is a reiteration of the court’s holding that the plaintiffs pleadings in Curtis were adequate to state a claim for psychological harm. It is made in the context of the preceding paragraph that “it is possible to infer from plaintiffs specific allegations of negligence [the] particular standard of care [at] issue.” In other words, the appropriate standard of care can be inferred from the allegations of fact in the complaint. The allegations of negligence in the plaintiffs complaint in Curtis did not allege expressly that the defendants had a specific duty to guard against psychological harm. Rather, they alleged that the defendants failed to warn “of possible claustrophobic effects” and that the plaintiff suffered psychological trauma as a result of the defendants’ negligent performance of the test on the plaintiff. The standard of care, the duty to guard against psychological harm that the Curtis court found, arose from the factual allegations about the defendants’ conduct, not from any pleading language about a specific duty.
In the next paragraph of the opinion, the Curtis court identified the issue that is framed as the result of the plaintiffs allegations of fact: “The real question is whether the harm alleged — severe and continuing psychological harm — is the kind of harm that the law is prepared to recognize as constituting the 'harm’ element in this kind of claim.” *143327 Or at 15 (emphasis in original). The court identified the issue as one of law; whether the harm alleged by plaintiff is cognizable as a matter of law. In Stevens v. Bispham, 316 Or 221, 228, 851 P2d 556 (1993), the court had explained that, depending on the case, the question of whether harm occurs may be a question of fact or a question of law:
“When we speak of ‘harm’ in the sense in which we will discuss it hereafter, we are referring to something more than the fact that a plaintiff has been convicted when he or she should not have been. Obviously, any such event is ‘harm’ in the common meaning of that term, when it occurs. Rather, we are speaking of ‘harm’ in the legal sense, i.e., a collection of facts that the law is prepared to recognize as constituting the ‘harm’ element of a claim for professional negligence.”
By framing the issue in this manner, the Curtis court set the stage for deciding as a matter of law whether the plaintiffs complaint states a valid claim despite its failure to allege any physical injury.
It analyzed the issue by holding:
“Plaintiffs claim invokes specific duties imposed on a group of medical professionals to guard against recognized medical risks that happen to be psychological in nature. It is, in that sense, like a patient’s claim against a psychotherapist who violates the relevant standard of care by entering into a sexual relationship with a patient, thereby causing depression or anxiety, or against a physician who inappropriately prescribes a drug that causes or exacerbates a psychological condition.”
327 Or at 15 (footnote omitted; emphasis in original). The court’s statement is a judicial declaration of a legal standard of care imposed on the medical profession as a result of the facts alleged in the plaintiffs complaint. Again, it is not based on a standard of care allegation in the complaint.
The court explained the reasoning underlying its declaration in the next paragraph and the limitation on its holding:
“We are persuaded that, when the claim is that a medical practitioner breached a professional duty to guard against a specified medical harm, the fact that the harm is *144psychological rather than physical is not a bar to liability. Our holding should not be read to mean that medical professionals operate under a general duty to avoid any emotional harm that foreseeably might result from their conduct. In that regard, their duty is no greater than that of the population at large. But, where the standard of care in a particular medical profession recognizes the possibility of adverse psychological reactions or consequences as a medical concern and dictates that certain precautions be taken to avoid or minimize it, the law will not insulate persons in that profession from liability if they fail in those duties, thereby causing the contemplated harm.”
327 Or at 15-16. The court concluded,
“When read in the light most favorable to plaintiff, the complaint alleges that defendants were medical professionals who owed a duty to plaintiff to identify and guard against predictable psychological reactions or consequences — including claustrophobic reactions — to the MRI procedure * *
327 Or at 16.
Curtis establishes the rule that, under certain circumstances, recovery can be obtained for psychological harm resulting from negligence in the absence of physical injury. That rule defeats defendants’ argument that there must been an actual exposure to HIV or Hepatitis B before plaintiffs claims are cognizable. In addition, a reading of Curtis in context demonstrates that Curtis does not require that plaintiffs expressly plead and prove a specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures in order to state a claim. Such a reading would be contrary to existing case law. The court has previously held that a complaint for injuries resulting from negligence may allege either a specific duty to be imposed on the negligent party, or facts from which the law would infer a duty. See Hendricks v. Sanford, 216 Or 149, 158-59, 337 P2d 974 (1959) (holding that “[a] complaint for injuries resulting from negligence should allege what duty was imposed or state facts from which the law would imply [sic] a duty and a breach thereof’); see also Kennedy v. Hawkins, 54 Or 164, 167, 102 P 733 (1909). Curtis makes no reference to changing the previous law. In fact, Curtis itself *145implicitly refers to such a rule when it says, “it is possible to infer, from plaintiffs specific allegations of negligence, that particular aspects of the relevant standard of care were at issue[.]” Curtis, 327 Or at 14. Whether the law imposes a specific standard of care to protect against psychological consequences is for this court to declare, based on the allegations or proof of negligence and the harm resulting therefrom. In other words, courts will decide on a case-by-case basis whether the law will recognize the harm alleged as “legally cognizable harm,” and no holding in Curtis compels affirmance in this case.
Third, plaintiffs counsel filed an affidavit in this case in which he averred that plaintiff had an expert witness who would testify that plaintiffs anesthesiologist failed to use the degree of care that is used within the medical community in the following particulars:
“a. In failing to insure that [plaintiff] would not be given medication with a syringe that had been previously used on another patient;
“b. In failing to properly prepare the anesthesia area for the surgery involving [plaintiff];
“c. In failing to properly clean up after the previous surgery;
“d. In giving medication to [plaintiff] with a syringe that may have been used on a prior patient thus exposing [plaintiff] to blood bom [sic] disease; and
“e. In failing to inform [plaintiff] immediately of the fact that it was likely that she had been given medication with a used syringe.”
Neither party offered expert testimony about whether a special duty exists to protect against psychological harm under the circumstances here. The question narrows to whether the law will infer a duty. Defendants argue that plaintiffs claim for psychological harm is not cognizable because her fear of exposure to HIV and Hepatitis B is not the kind of harm that the law is prepared to recognize as legally cognizable without actually contracting the disease. However, that is the wrong test. Whether the law will recognize a duty to prevent the kind of harm suffered by plaintiff *146depends on whether there is a recognized risk or concern within the medical community about such harm.
Recognized risks or concerns within the medical community for purposes of medical malpractice cases are generally established by expert medical testimony. What is reasonable conduct, i.e., the standard of care required to be exercised, is ordinarily not within the knowledge of the jury. In the typical case, a court would be unable to declare a legal duty to prevent such harm in the absence of expert medical testimony.
“On the other hand, if the jury is capable of deciding what is reasonable conduct without assistance from an expert medical witness!,] no expert testimony is necessary to establish the standard of care. For example, a jury could find a surgeon was negligent without the assistance of expert medical testimony if the surgeon operated without sterilization of his instruments.”
Getchell v. Mansfield, 260 Or 174, 179-81, 489 P2d 953 (1971). Similarly, the court in King v. Ditto, 142 Or 207, 214, 19 P2d 1100 (1933) remarked,
“[w]e think it would be negligent for a surgeon to perform an operation without sterilization of instruments whether it occurred in the city of Portland or in the city of Rainier.”
In my view, this is the kind of case that fits into the exception to the general requirement that a duty of care must be established by expert medical testimony. The duty advocated by plaintiff is the duty to prevent the exposure of a patient in a hospital environment to the emotional harm arising from the perception of a possible exposure to HIV or Hepatitis B. That duty arises within the ordinary knowledge that a potential exposure to HIV or Hepatitis B causes emotional trauma to any person in plaintiffs circumstances, at least until the testing period is complete. There is no need for a medical expert to testify to such a duty. That duty is as obvious as the duty to sterilize surgical instruments was in King. Plaintiffs resulting emotional harm from the breach of defendants’ duty does not depend on whether the diseases are ultimately contracted or not. Rather, the emotional harm occurs while the patient awaits the outcome of the tests. No jury requires the assistance of an expert witness to understand *147the depth of anxiety that exists during that time after a patient has been notified that a syringe used for another patient has also been used in his or her intravenous treatment. In sum, the common law exists for these very kind of circumstances. It is an ordinary experience to suffer anxiety while awaiting the outcome of medical tests for any serious medical problem. Here, plaintiffs anguish was caused by defendants’ negligence. Her anguish was as predictable as the anguish suffered by the plaintiff in Curtis who underwent an MRI. Under the circumstances, this court should have no difficulty inferring from plaintiffs evidence that there is a recognized concern within the medical community about preventing such harm. It follows as a matter of law that a duty exists to prevent the negligent conduct that would produce such harm.
To reiterate the governing legal principles: in the absence of any pertinent legislation, it is for the courts “to define what constitutes legally cognizable harm in a tort case.” Stevens, 316 Or at 229. The “harm claimed” in this case involves psychological harm, including mental anguish, loss of sleep, loss of enjoyment of life, fear, anxiety, fatigue and depression. “[T]he fact that the harm is psychological rather than physical is not a bar to liability.” Curtis, 327 Or at 15. The admonition in Curtis that no general duty of care exists to protect from emotional harm is inapplicable to these facts. Defendant’s liability is not predicated on a principle of general foreseeability as the majority suggests; rather, the conclusion is that a standard of care to prevent emotional harm exists under the circumstances of this case because of the gravamen of plaintiffs claim. Even in the absence of expert medical evidence, it is the peculiar nature of the facts in this case, as understood by ordinary people, that gives rise to a specific duty to protect against the kind of harm suffered by plaintiff. It follows that “where the standard of care * * * recognizes the possibility of adverse psychological reactions or consequences as a medical concern and dictates that certain precautions be taken to avoid or minimize it, the law will not insulate persons in that profession from liability if they fail in their duties, thereby ■ causing the contemplated harm.” Curtis, 327 Or at 15-16. (Emphasis added.) Accordingly, I would hold that defendants are not insulated from liability *148for the psychological harm suffered by plaintiff as a result of their negligence.
Although I concur in the majority’s decision regarding plaintiffs malpractice claim insofar as her claim of physical injuries is concerned, I dissent from its ruling dismissing her emotional harm claims.
De Muniz, Armstrong and Wollheim, Judges, join in this dissent.