(dissenting).
In Gerety v. Demers, 86 N.M. 141, 520 P.2d 869 (1974), the Supreme Court said:
For the reasons stated the case must be remanded to the Court of Appeals with directions that the court consider whether or not there was substantial evidence to justify the submission of the plaintiffs theories of negligent surgery and lack of informed consent to the jury . . .. [Emphasis added.] 520 P.2d at 871.
(A) Lack of Informed Consent Answered
In Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973), (Sutin, J., concurring), the issue of “lack of informed consent” was answered. As I explained in that opinion, there was substantial evidence to justify submission to the jury of plaintiff’s theory of lack of informed consent.
(B) Substantial Evidence Supports Plaintiffs Theories of Lack of Consent and of Unauthorized Operation as Proximate Causes of Damage
The Supreme Court in Gerety requested this court to determine whether or not there was substantial evidence to justify submission to the jury of “plaintiff’s theories of negligent surgery and lack of informed consent.” We must assume that when the Supreme Court referred to “plaintiff’s theories” the court was referring to the theories submitted to the jury by Instruction No. 1. There were no other theories submitted.
Instruction No. 1 reads in substantial part as follows:
The plaintiff claims that he sustained damages and that the proximate cause thereof was one or more of the following claimed acts of malpractice :
1. The defendant proceeded to perform an operation upon him and in so doing failed to possess and apply the knowledge and use the skill and care which would be used by reasonably well qualified specialists in the same field practicing under similar circumstances.
2. The defendant proceeded to perform an operation upon the plaintiff without first obtaining a legal consent therefor.
3. The defendant proceeded to perform an operation upon the plaintiff which was different from any operation authorized by the plaintiff.
The plaintiff has the burden of "proving that he sustained damage and that one or more of the claimed acts was the proximate cause thereof. [Emphasis added.]
Except for substitution of the word “malpractice” for “negligence,” this instruction is identical with that stated in U. J.I. 3.1. The Directions on Use for that instruction states:
This is the most important single instruction in the lawsuit and court and counsel should give particular attention to it. . . .
What this instruction means is clear and unambiguous. If a plaintiff claims three acts of medical malpractice and proves that one of them is the proximate cause of the damage, he is entitled to recover. Plaintiff does not have to prove each and every one of his theories, for “[s]uch is not the language [of the instruction]. The language reads ‘one or more.’ ” Tafoya v. Whitson, 83 N.M. 23, 28, 487 P.2d 1093, 1098 (Ct.App.1971).
We must determine whether there was substantial evidence to support item (2) in the above instruction. That is, did the defendant proceed to perform an operation upon the plaintiff without first obtaining a legal consent therefor which was a proximate cause of plaintiff's damage P
The answer is “Yes.” The opinion of the court and my own concurring opinion in Demers, 85 N.M. 641, 515 P.2d 645, analyze the substantial evidence which leads to that conclusion. Defendant did not obtain a legal consent before operating on plaintiff. Without consent, he had no right to operate. This unlawful act (the operation) was the proximate cause of plaintiff’s injuries. It is unnecessary, with regard to this point, to inquire about defendant’s surgical technique.
The same conclusion is reached on item (3) in the above instruction. Plaintiff consented to an operation for “repair of the ventral hernia.” Defendant performed a revision of the ileostomy. This operation was not authorized by plaintiff, and it was, as stated above, a proximate cause of plaintiff’s damage.
(C) Negligence by a physician is not confined to negligence in diagnosis and treatment.
The majority opinion limits its discussion of negligent surgery to a consideration of item (1) in the above instruction, that defendant failed to perform the operation with care and skill. This is incorrect because defendant should not have performed the operation at all. The majority of this court incorrectly applies the ruling of the Supreme Court in Gerety to the facts of this case. By implication, the majority opinion has changed “theories” in the Supreme Court’s opinion into “theory.” The opposite of plural is singular. It fails to recognize that items (2) and (3) in the above instruction constitutes “negligent surgery” as much as item (1).
The time has come to make clear, that absent consent, a plaintiff need not prove negligence in diagnosis or in operating procedure on a negligence theory against a physician. Lack of negligence in performing the treatment or operation is no defense. Proof of defendant’s causal negligence in performing the operation is not relevant. Judgment N.O.V. is erroneous. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); 52 Iowa L.Rev. 786 (1967). There is no inconsistency between a failure to inform and a charge of negligence in the performance of an operation. Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234 (1965).
(D) Defendant was not entitled to a directed verdict or judgment N.O.V.
The Supreme Court in Gerety v. Demers held that, under Rule 50(b) of the Rules of Civil Procedure, the legal question is whether or not the evidence is sufficient, at the close of all the evidence, to submit the case to the jury upon the issues raised by the plaintiff. Plaintiff’s evidence shows, (1) that defendant performed an operation on plaintiff without legal consent, and (2) that defendant performed an operation on plaintiff which was not authorized. Demers v. Gerety (opinion of the court and concurring opinion). Thus two of the issues raised with regard to negligent surgery were properly submitted to the jury. Consequently, defendant was not entitled to a directed verdict or judgment N.O.V.
Seven years have passed since plaintiff was damaged. The jury decided in plaintiff’s favor. One must conclude that defendant was negligent in the performance of his duty as a surgeon. We should not discover an extraneous avenue to travel to reverse the case. Neither should we, as a court of review, substitute our judgment for that of the jury.