concurring in part; dissenting in part.
I agree with the majority’s conclusion that the county is not liable under ORS 169.140 and 169.150 for the medical expenses incurred by Barbara Eacret. I also agree with the majority that the county is liable under the *366statutes for expenses incurred by Lula Lawrence and Randy Riter. Accordingly, I concur in those portions of the majority opinion. I disagree, however, with the conclusion reached by the majority with regard to the county’s liability for the expenses incurred by Danny Amegard, Clarence Snow, Henry Adams and Curtis Crisel. Therefore, I respectfully dissent.
As the majority notes, these four individuals were arrested by non-county law enforcement personnel for violations of state law committed within the county. Their needs for medical treatment were discovered before they were transported to the county jail. All were taken directly to plaintiff hospital, treated as outpatients, and thereafter taken to the county jail.
The basis for the county’s responsibility under the statutes is correctly stated by the majority:
"* * * The county’s responsibility does not depend upon the existence of formal physical custody in a correctional facility. Mercy Hospital v. Douglas County, supra. The statutes impose liability in those instances where indicia of custody are present, i.e., where there is some basis to conclude that at the time of the prisoner’s medical treatment, the prisoner’s detention was sufficiently similar to actual county custody to require the comity to bear the cost of their medical care.” 52 Or App at 364. (Emphasis in original.)
Having stated the correct basis of the county’s liability, the majority erroneously, I believe, concludes that the county is liable for medical treatment of prisoners following arrest "so long as the offender is arrested for a violation of state law, and in due course is ultimately delivered to the local correctional facility for confinement and trial * * 52 Or App at 364.
The majority’s conclusion does not accord with its test. Clearly, at the time medical treatment was provided these individuals, they were not in actual county custody. The question then is whether at the time they received medical treatment, the circumstances were sufficiently similar to county custody to require the county to pay for their treatment. I conclude they were not.
It is significant to note that in no prior case cited by the majority has a county been held responsible for medical *367expenses incurred by persons who, on the way to being lodged in the county jail, are treated on an outpatient basis for minor injuries. To the contrary, the cited authorities reveal that, absent actual county custody, liability has been imposed only when the hospital, in addition to providing medical care, has also served as a custodial facility. Sisters of Charity v. Washington County, 244 Or 499, 419 P2d 36 (1966); Bd of Higher Educ. v. Wash. Co., 52 Or App 369, 629 P2d 373 (1981); Mercy Hospital v. Douglas County, 28 Or App 557, 559 P2d 1286 (1977).
Based on the above authorities, I conclude that in order for the county to be held liable for medical expenses incurred by a prisoner, absent actual custody in the correctional facility, the circumstances must indicate that at the time treatment is rendered the hospital is serving not only as a medical facility but, in addition, a custodial facility. Thus, at the time treatment is rendered the prisoner’s liberty must be restrained in essentially the same manner as if he was lodged in the county jail for one of the purposes specified in ORS 169.150. Such circumstances are sufficiently similar to actual county custody. The hospital becomes a place of commitment and custody, an extension of the county jail. It is fair to hold the county liable under ORS 169.140 and 169.150 for medical expenses incurred in such circumstances.
The four individuals in this case were treated on an outpatient basis. None of the prisoners, at the time of treatment, were "in custody” in the hospital. The hospital provided only medical services, but did not serve as a custodial facility. I would hold that the county’s liability does not arise absent such a custodial relationship between the hospital, the prisoner and the county. In my view, the arrest by an arresting agency other than the county sheriff of an individual who is taken subsequent to arrest for outpatient treatment and later lodged in the county jail does not constitute sufficient custody as to require the county to assume financial responsibility for the arrestee’s care. Therefore, I would conclude that the trial court did not err in denying plaintiff recovery for the expenses related to the treatment of these four individuals. Accordingly, I respectfully dissent from that portion of the majority opinion.