The opinion
TAFT, Justice,
dissenting.
In our original opinion, we held that Dr. Gage Van Horn owed a common-law duty to Ronald Chambers, a third party injured by a patient who had been under Dr. Van Horn’s care. In his motion for rehearing, Dr. Van Horn points out that our opinion (footnote 11, at page 22) sets out the balancing factors used in determining whether to impose a new duty, without conducting an analysis utilizing these factors. I agree that a balancing analysis should be done before imposing a new common-law duty.
Imposing New Duty
Deciding whether to impose a new common-law duty of care to third parties involves complex considerations of public policy requiring application of contemporary social, economic, and political attitudes to the particular facts at hand. Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993) (citing H.W. Mitchell v. Missouri-Kansas-Texas R.R., 786 S.W.2d 659, 662 (Tex.1990)). Such considerations include the risk, foreseeability, and the likelihood of injury, weighed against the social utility of the actor’s conduct, the *194 magnitude of the burden of guarding against the injury, and the consequences of placing that burden on the actor. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex.1994). Foreseeability has traditionally been the most significant consideration. H.W. Mitchell, 786 S.W.2d at 662 . The existence of duty is a question of law for the court to decide from the facts surrounding the event in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 623, 525 (Tex.1990) (citing Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex.1983)).
Facts
When Johnny Long, Jr. was admitted to Hermann Hospital on April 20, 1991, he had been previously treated as an outpatient on several occasions and admitted for three days in 1985 for alcohol withdrawal seizures, all without incident. On the night of April 20th, Long was brought to the emergency room of Hermann Hospital on a backboard with all four extremities in leather restraints. He was diagnosed and treated for both seizure disorder and alcohol withdrawal. In the emergency center, Long was violently combative, kicking, biting, and hitting the medical staff and hospital employees.
After being examined and treated in the emergency room, Long was transferred to the Neurological Critical Care Unit (NCCU) in the early morning hours of April 21st. Later in the day, Long was much more alert, no longer agitated, and had no complaints. He was oriented, pleasant, and cooperative: Dr. Mieheline McCarthy saw Long and noted that he did not remember the events of the previous day.
On April 22nd, Dr. Van Horn first saw Long, reviewed his history, and examined him. Long exhibited signs of improvement and his seizure spells had ceased. As a result, Dr. Van Horn transferred Long to a private hospital room on the evening of April 22nd. Dr. Van Horn had no further contact with Long’s case.
After being transferred, at about 9:30 p.m., Long was seen by an intern, Dr. Stone, when he became agitated about the prospect of losing his job because of his hospital confinement. Long spoke of marital difficulties, but eventually calmed down and agreed to stay in the hospital room. The next morning, Long became belligerent and assaulted a nurse in an attempt to leave the hospital. Ronald Chambers, a patient-care technician, and others attempted to restrain Long. A struggle ensued and Chambers and three others, including Long, fell through a louvered grill, floor to ceiling in height, -which covered an opening to an air shaft. Chambers died instantly. Immediately after the incident, Long was taken to the emergency room and leather restraints were placed on him once again.
Balancing Analysis
Before deciding to impose a duty of care upon Dr. Van Horn toward third parties injured by a patient who had been under his care, we should analyze Dr. Van Horn’s conduct of transferring Long to a less restrictive environment, in terms of: (1) risk; (2) foreseeability; (3) likelihood of injury; (4) social utility of conduct; (5) magnitude of the burden of guarding against the injury; and (6) consequences of placing that burden on Dr. Van Horn.
A. Risk, Foreseeability, and Likelihood of Injury
Risk, foreseeability, and likelihood of injury are interrelated concepts capable of being considered together. Foreseeability is defined as the general character of injury that a person of ordinary intelligence should have anticipated his negligent act could cause. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex.1987). Before liability will be imposed, there must be sufficient evidence indicating that the defendant knew or should have known that harm would befall a victim; absent such a showing, a defendant is absolved of liability. Greater Houston Transp. Co., 801 S.W.2d at 526 .
Although our original opinion does not specify what evidence we relied upon to create a fact issue regarding foreseeability, much less how the circumstances in general gave rise to foreseeability for purposes of imposing a new common-law duty, Dr. Kramer’s affidavit is the only source of such evidence that was set out. Dr. Kramer’s affida *195 vit emphasizes the fact that, upon admission, Long’s secondary diagnosis had been alcohol ■withdrawal and there was no indication in the records that Dr. Van Horn had considered treating Long for alcohol ■withdrawal. In Dr. Kramer’s expert opinion, Long was displaying symptoms of alcohol withdrawal while in the NCCU which Dr. Van Horn did not take into consideration in his decision to transfer Long from the NCCU to a private room. Dr. Kramer based his opinion on medical records from the NCCU supported by Dr. Stone’s notes from the evening of April 22nd that indicated Long was “quite agitated and aggressive on arrival to room as is apparently a frequent occurrence for him.” To Dr. Kramer, this statement suggested that hospital records available to Dr. Van Horn revealed that Long had a previous medical history of violent and aggressive behavior that should have been addressed.
Dr. Kramer’s affidavit did not mention any specific symptom of alcohol withdrawal reflected in the medical records, or even explain what the symptoms of alcohol withdrawal are. I am concerned with the con-clusory nature of Dr. Kramer’s expert opinion. While the job of understanding medical records is admittedly difficult to the untrained eye, there does not appear to be any indication of a symptom of alcohol withdrawal in the NCCU records attached as summary judgment evidence. Perhaps the absence of any such symptom is the reason for Dr. Kramer’s observation that Dr. Van Horn did not consider treating Long for alcohol withdrawal. The only apparent basis for concluding there was a symptom of alcohol withdrawal is that Long was given the prescriptions suggested by the emergency room doctor for alcohol abuse. However, even the medical records giving the emergency room doctor’s orders upon transfer to the NCCU indicate a question mark by the secondary diagnosis of alcohol withdrawal. Other than the administration of the two prescriptions for alcohol abuse, which Long’s wife denied throughout the medical records, there is no apparent indication of a symptom of alcohol withdrawal. To the contrary, upon receipt at the NCCU Long was drowsy, but oriented. The next day, when seen by Dr. Van Horn, Long was alert, oriented to person, place, and time, AND exhibiting coherent and fluent speech, with no memory of the events of the previous day.
Dr. Kramer’s affidavit stated his opinion, that Long exhibited symptoms of alcohol withdrawal in the NCCU, was supported by Long’s behavior after being transferred to a private room. Dr. Stone’s notes reflected that Long was agitated, Long wanted to go home, and that it was apparently a frequent occurrence for Long to be agitated and aggressive. This indicated to Dr. Kramer that Long had a previous medical history of violent and aggressive behavior that Dr. Van Horn should have taken into consideration.
Long’s medical records covering treatment at Hermann Hospital over the past 15 years were included in Dr. Van Horn’s summary judgment evidence. There are several instances of out-patient treatment and one admission for a period of three days for alcohol withdrawal seizures. In none of the records is there any indication of violence or misbehavior of any kind. Dr. Kramer’s conclusion is based on what he took to be a “suggestion” of the existence of medical records from a statement in Dr. Stone’s report that agitation and aggression is apparently a frequent occurrence for Long. While Dr. Kramer’s conclusion is so speculative as to arguably be without any foundation at all, it is also based on observations by Dr. Stone that occurred after Dr. Van Horn had made his decision to transfer Long.
An analysis of foreseeability should be confined to the facts known to Dr. Van Horn at the time he ordered Long’s transfer from the NCCU. In light of Long’s nonthreatening prior medical history at Hermann, his positive reaction to medication, his positive EEG results, his pleasantness and cooperativeness, his having forgotten the events of the day before when he was combative, his lack of seizure spells in two days, and in the absence of any apparent symptom of alcohol withdrawal in the NCCU medical records, I would conclude that the risk, foreseeability, and likelihood of Long injuring others were exceedingly slight, if any, due to his improved medical condition.
*196 B. Social Utility
Dr. Van Horn’s transfer of Long was socially useful because treatment of patients with seizure disorders requires the least restrictive environment possible, according to summary judgment evidence provided by Dr. Wilder’s affidavit. It was also undoubtedly less expensive for Long to be in a private room than the NCCU. On the other hand, there is an obvious lack of social utility if mental patients are released from restraint before they can safely interact with others.
C. Magnitude of Burden
The magnitude of the burden of keeping Long in the NCCU rather than transferring him to a private room is not overly burdensome or expensive by itself. However, it would be an undue burden to require obviously improved patients to remain in NCCU in the absence of indications they would be a danger to themselves or others. This demonstrates the importance of the foreseeability factor throughout the balancing process.
D. Consequences of Burdening Physicians
Dr. Van Horn claims that the duty placed on him by our original opinion renders him a patient’s insurer or jailer. He refers to reported cases in which physicians have been sued for placing patients in restraints — making a “darned if he does, darned if he doesn’t” argument. It is common knowledge that medical costs have risen drastically because of the extra care physicians feel constrained to provide to avoid lawsuits. The legislature so found in enacting the Medical Liability and Insurance Improvement Act. 1 I would conclude the consequences of imposing a burden of continuing to restrain a patient who reasonably appears ready for less restriction are too severe.
Conclusion
Therefore, after applying the balancing considerations to the facts at hand, I would hold that Dr. Gage Van Horn did not owe a duty to Chambers. I would affirm the trial court’s summary judgment.
COHEN and MIRABAL JJ., also participating.
WILSON, J., dissenting from the denial of en banc consideration and joining this dissent.
. Tex.RevCiv.Stat.Ann. art. 4590Í, § 1.02(a) (Vernon Pamph. 1997).