(concurring in part and dissenting in part).
I agree with the majority opinion to the extent that it affirms the order of the district court denying plaintiff’s motion for a judgment n. o. v. I do so because I am satisfied that the evidence of informed consent, whether evaluated by the federal or Pennsylvania law standard, created an issue to be resolved by the jury.
However, contrary to the majority of the court, I think it was error for the district court to deny plaintiff’s motion for a new trial. The majority’s conclusion is premised on its determination that there was evidence which warranted the district court in giving the jury a charge on emergency. I cannot agree.
The evidence relied upon in the majority opinion as creating a jury issue as to emergency is the doctors’ testimony that an emergency existed which required the operation be performed at that particular time. I accept that testimony as true; but under the undisputed facts of this *948case it did not establish an “emergency” which excused the need for an informed consent. Plaintiff’s wife was in the hospital for a total period of over 30 days prior to the operation and no one questions the doctors’ testimony that surgery was the only treatment contemplated from the date of her admission to the hospital. It is not disputed that two blank forms were signed by the plaintiff and his wife, respectively, consenting to an operation. Moreover, one of the defendants testified that he spoke to plaintiff about two days before the operation and told him that it would be done on “either of the following two days.” The reality is that the defendants had procured a consent to the operation well before it was performed. This, then, is not a case which required that an operation be performed before a consent could be obtained. Merely because plaintiff thereafter denied that the consent was an informed one does not warrant a treatment of this case as though the events prior to the operation had not occurred.
I would therefore set aside the verdict and grant a new trial because the jury returned a general verdict and it is therefore not possible to say that the jury’s verdict did not result from an unwarranted finding that there was an emergency which excused the need to procure an informed consent.