DISSENTING OPINION OE
ABE, 3.As I see it, the sole issue of this case may be framed thus: where a patient suffers injuries as an after-effect of *202thoracic aortography performed with his consent, such consent having been obtained without the disclosure of attendant collateral hazards, which party has the burden to prove that such non-disclosure was or was not according to reasonable standard of medical practice and therefore was or was not actionable?
This court recognizes the doctrine of informed consent and thereby imposes a duty on physicians to make full and complete disclosure of relevant information pertaining to proposed treatment or diagnostic procedure, including attendant collateral hazards. This doctrine is based on the concept that consent unless intelligently given is no consent, and that there can be no intelligent consent unless a patient is given reasonably full and complete information of the treatment or diagnostic procedure, as well as the collateral effects. Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal. App. 2d 560, 317 P.2d 170 (1957); Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964).
This court on this issue says:
“In determining the question of physician’s liability for nondisclosure, courts generally follow the rule applicable to medical malpractice actions predicated on alleged negligence in treatment which requires the question of negligence to be decided by reference to relevant medical standards and imposes on the plaintiff the burden of proving the applicable standard by expert medical testimony. Shetter v. Rochelle, 2 Ariz. App. 358, 409 P.2d 74 (1965); De Filippo v. Preston, 53 Del. 550, 173 A.2d 333 (1961); Ditlow v. Kaplan, 181 So. 2d 226 (Fla. App. 1965); Grosjean v. Spencer, 258 Iowa 685, 149 N.W.2d 139 (1960); Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627 (1963); Aiken v. Clary, supra [396 S.W.2d 668 (1965)]; Patterson v. Lynch, 209 N.Y.S.2d 244 (1969); Anderson v. Hooker, 420 *203S.W.2d 235 (Tex. Civ. App. 1967); Govin v. Hunter, supra, [374 P.2d 421 (Wyo. 1963)].”
And concludes: “[t]hus, we treat this case as a negligence action. The right of a plaintiff to relief does not depend upon his allegations or his theory of the case.” (Emphasis supplied.) I agree with the emphasized portion of the statement. However, I do not believe that where the plaintiffs, as in this case, have alleged battery as a sole ground for claim of relief and have tried the case under the theory, this court can rightfully and justifiably hold that the plaintiffs claim for relief should be decided on technical elements of the negligence theory to their prejudice. Therefore, I dissent.
I.
If the decision of this court is that all claims for relief under the doctrine of informed consent shall be tried under the negligence theory, I question the soundness of such holding. It appears to me that the only difference in the trial of such action under the battery theory and. tiie negligence theory is as follows: (a) under the battery theory a physician must prove that withholding the information was justified under reasonable standard of medical practice ; and (b) under the negligence theory a patient must prove it was negligent under established standard of medical practice for a physician to have withheld the information. .
I am not convinced that this case should have been tried only under the negligence theory. Of course, as pointed out by this court, in other jurisdictions actions involving informed consent have been treated as medical malpractice cases and then classified as negligence actions; but reasons given for such classification are not convincing. Professor Prosser says that where a physician has failed to make full disclosure, most of the courts have treated the *204issue as one of negligence and says that treating such a claim of relief on the negligence theory is preferable “in the light of the possible highly undesirable effects upon some patients of disclosure of some medical or surgical risks.”1 Is this reason legitimate? I don’t think so because even under the theory of battery, a physician may justify his nondisclosure when it is for the best interest of a patient not to do so under reasonable standard of medical practice.
Fundamentally, the claim for relief under the doctrine of informed consent is founded on the theory of battery. And as I have noted above, this doctrine is based on the concept that consent unless intelligently given is not a consent, and thus, consent obtained by fraud or without reasonable disclosure is void — a nullity. In other words, fraud or misrepresentation or failure on the part of a doctor to reasonably inform a patient2 vitiates the consent that he may have obtained from a patient and, therefore, whatever was done by a doctor, even with the utmost skill, is battery and a patient would have a claim for relief. Thus, it is no defense for a doctor that the treatment or diagnostic procedure was conducted with utmost skill, because the claim for relief is not the unskillful nor negligent act of a physician, but the unconsented touching of a patient which is battery.3
The plaintiffs correctly tried this case under this theory. The evidence is uncontradicted that Dr. Hartwell and Dr. Scully failed to fully disclose to the patient the collateral hazards of the injection of Urokon in the diagnostic procedure of thoracic aortography. Thereby, I believe, the *205plaintiffs bad proven a prima facie case of battery and liability on the part of the doctors. The burden was not on the plaintiffs to show that under reasonable standard of medical practice the doctors should have been required to make full disclosure.
Because the consent to conduct thoracic aortography had not been obtained after full disclosure, it was for Dr. Hartwell and Dr. Scully to show why they should not be liable for battery. It appears that their defenses were:
(1) That the attendant collateral hazards of paralysis as an aftermath of the injection of Urokon was minimal, and therefore under medical standards they were under no duty to advise Dr. Nishi of that danger; and
(2) That because of Dr. Nishi’s psychological condition, they did not disclose the attendant hazards for the best medical interest of Dr. Nishi.
Assuming, arguendo, the validity of such defenses, they were affirmative defenses in a nature of confession and avoidance, and the burden of proof was with the physicians. They had the burden to show by expert medical testimony, that the diagnostic procedure of thoracic aortography conducted by the injection of Urokon into the bloodstream would not as an aftereffect bring about paralysis, or that such hazard was so minimal that they were under no duty to inform Dr. Nishi of the attendant hazardous effect. Or that by reasonable standard of medical practice it would have been for the best interest of Dr. Nishi not to inform him of the hazardous aftereffect of the injection of toxic Urokon in the performance of thoracic aortography.
Here, there was no such standard established, nor was there an attempt to do so because the trial judge dismissed the case after the plaintiffs rested, though they had proven a prima facie case. The dismissal was based on an erroneous theory that the plaintiffs had the burden to prove *206that under reasonable standard of medical practice, Dr. Hartwell and Dr. Scully were under a duty to make reasonable disclosure to Dr. Nishi. As I have noted above that was not the case, and the plaintiffs by showing that Dr. Hartwell and Dr. Scully failed to reasonably inform Dr. Nishi, had proven a prima facie case for recovery against and liability on the part of Dr. Hartwell and Dr. Scully.
However, the trial court first and this court now arbitrarily make a choice for the plaintiffs as to the theory of this case, which is contrary to their choice and action taken in the trial pursuant thereto, and with the making of this selection figuratively kick them out of court.
Thus, if it is the intention of this court to adopt a policy to require all cases of informed consent to be tried under the negligence theory, unless it gives the plaintiffs an opportunity to retry this case in the trial court under the negligence theory, I believe it would be a denial of justice.
II.
This court further attempts to justify the action of the trial judge in directing a verdict for the defendant-doctors with the statement that “[t]he only medical standard established here justified defendants’ omission to disclosure.” And that
“Plaintiffs called defendants as adverse witnesses. Defendants testified as such and not as expert witnesses. Nevertheless, defendants were medical experts, and their testimonies may properly be deemed to be expert medical testimony insofar as they disclosed the practice of competent and responsible medical practitioners in a particular medical situation.”
This court in following Wilson v. Scott, 412 S.W.2d 299 (Tex. 1967), is making bad law. Both Dr. Hartwell *207and Dr. Scully, who had taken the stand as adverse witnesses, were giving self-serving testimony to justify their action and non-action. Now this court says their testimony may be used to establish reasonable standard of medical practice. In other words, a doctor can tell the jury and decide for the jury that he is not liable because of his say so. I rue this day where it has been recognized that one can exonerate himself of liability on his say so. I believe such self-serving testimony should not be used to establish the relevant standard of medical practice. Here their testimony was to show what they did or failed to do and the reasons for their action or non-action. Testimony of other disinterested physicians should be required to establish the reasonable standard of medical practice on these questions so that the conduct of Dr. Hartwell and Dr. Scully may be measured against such standard by the jury to determine whether under the established standard Dr. Hartwell and Dr. Scully were justified in conducting the diagnostic examination on the consent of Dr. Nishi, which was not based on reasonable disclosure. This determination should be made by the jury and not the defendant-doctors.
III.
Further, if the decision of this court means that all cases under the doctrine of informed consent shall be tried under the negligence theory, it may amount to nullification of all such claims because it may be almost impossible, if not absolutely impossible in many cases, to prove damages under the generally recognized rule of proximate cause.
Now let us assume that in this case it was proven that under established standard of medical practice Dr. Hart-well and Dr. Scully should have made full disclosure of the collateral hazards attendant, and therefore, their *208failure to do so was negligence. Now, will they be liable for damages to Dr. Nishi for the injuries he suffered because of this negligence? Not under the generally recognized rule of proximate cause because the injuries he suffered were not the proximate result of the negligence of the physicians — their failure to make full disclosure. The injuries were the result of the injection of Urokon into his bloodstream and its aftereffect.
In discussing the causal relationship and damages in cases under the informed consent doctrine, Professor Marcus L. Plante4 says:
“The essence of the legal wrong to plaintiff in a battery case is the touching itself which, standing alone, entitles him to substantial damages. Thus the issues of causation and damages are simple.”
On the other hand he states:
“In medical negligence cases, however, the issue of causation is more complex in theory and practice. Plaintiff must show that if he had been fully advised as to the collateral risk he would not have submitted to the procedure. This is a sort of ‘but for’ rule. There must be a cause-in-fact relationship between plaintiff’s ignorance of the risk and his willingness to go forward with the operation. The converse is also true, i.e., if it appears that plaintiff knew of the risk all the time, the failure of the physician to disclose it would have no causal connection with the injury.”
*****
“How is this causal relationship to be proved? It may not be difficult. All that plaintiff may need to do is testify that he would not have permitted the operation if he had known the risk; then, unless his veracity is impeached, or his assertion is inherently incredible
*209(e.g., because of tbe slight danger involved), or there is proof that he actually knew of the danger all along, he would at least make an issue for the jury.”
It appears to me that the “but for” rule is inconsistent with the generally recognized rule of proximate cause. Under the “but for” rule one can be held responsible for all natural consequences of his act. To cite a ridiculous example where a person is injured it may be argued “but for” his getting up in the morning he wouldn’t have been injured.
As I have stated above the injuries suffered in most cases would not be the proximate result of a physician’s failure to make full disclosure to a patient. Is this court adopting the “but for” rule in cases under the doctrine of informed consent? Or is the rule of proximate cause to be substituted by the “but for” rule in all negligence cases?
Here, Dr. Nishi in his deposition stated that he would not have consented to undergo thoracic aortography if he had been fully informed of the collateral hazards attendant and thus, the plaintiffs would have been able to prove damages under the “but for” rule. However, how is a plaintiff, who sues a physician in a representative capacity for a deceased person, to show causal relation even under the “but fox1” rule where the patient dies during a surgery or immediately thereafter before he learns of the nondisclosure?
Also to require a patient-plaintiff to show that his mental and emotional condition at the time of the treatment or pxdor thereto did not justify a physician from withholding certain information, I believe, would be placing almost an insurmountable burden of proof upon a plaintiff. In many cases a patient may have had one family doctor and he alone would have the specific knowledge regarding plaintiff’s condition that would justify non-disclosure.
*210I believe logic and reason dictate that courts should permit the trial of cases involving informed consent under the battery theory for the reasons I have stated above, unless the basic ground for requiring such cases to be tried only under the negligence theory is to discourage such actions by making proof difficult for patients.
IV.
If the reason for requiring this case to be tried under the negligence theory is not to shift the burden Of proof as to the justification for the physicians’ failure to make full disclosure, even under the negligence theory the burden of proof on that question should be placed upon the physicians.
It is general knowledge that a doctor dislikes to testify against his fellow doctor.5 Thus as a general policy, wherever possible, courts should not overly burden a patient-plaintiff by requiring him to prove his case against a physician by the testimony of other physicians. Therefore, in the trial of this case, even under the negligence theory, the burden of proof on the issue of nondisclosure should be on the physicians and they should be required to prove by testimony of disinterested expert witness that under established standard of medical practice they were justified in not fully disclosing to Dr. Nishi of the collateral hazards attendant.
Thus to overcome the difficulties of proof, this court should, as a matter of law, create a presumption that where a patient’s consent to the operation or treatment has been obtained without reasonable disclosure there has *211been a deviation from established standard of medical practice and impose upon a physician the onus of coming forward with justification of his conduct by the use of qualified medical evidence.6
This court has indicated its willingness to pioneer new case laws to bring about justice and fairness and to meet the needs of changing time.7 However, it appears that here this court is backing away from this policy. Yes, this court by its decision recognizes a claim of relief under the doctrine of informed consent, but by the same decision it also nullifies this claim by making it almost impossible, if not absolutely impossible for a patient to prove such claim and damages. Also, if all cases for informed consent are to be tried under the negligence theory, what rule of causation is to be applicable?
I would reverse and remand for a new trial.
Prosser, Torts § 18 at 107 (3d ed. 1964).
Of course subject to justification for non-disclosure under reasonable standard of medical practice.
Unless the consent is' vitiated, in my opinion, there will be no basis for a claim of relief. Assuming that a doctor was negligent for his failure to reasonably disclose the hazards, under the negligence theory what is the basis for claim of relief where treatment or operation was performed with reasonable skill?
An Analysis of “Informed Consent,” 36 Fordham Law Review, 639, 666-667 (1968).
In Agnew v. Parks, 172 Cal. App. 2d 756, 763, 343 P.2d 118, 123 (1959), where a patient sued a group of doctors for “conspiracy to obstruct the ends of justice” for their refusal to testify, the court calls this reluctaney of doctors to testify “conspiracy of silence.”
Professor Allan H. McCoicl made sueb a suggestion on the issue where a patient had not given express consent to the operation or treatment. A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn. L. Rev., 381, 434 (1957).
Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967); Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969); Pickard v. City & County, 51 Haw. 134, 452 P.2d 445 (1969), Tamashiro v. De Gama, 51 Haw. 74, 450 P.2d 998 (1969); Fergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374, 441 P.2d 141 (1968); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970).