specially concurring.
I concur in the result reached in the majority opinion, but in my view its rationale is unnecessarily complex and its reasoning somewhat obtuse.
The decisional law regarding consent to medical treatment arose from the common law prohibition of an unprivileged touching. As it became recognized that the patient should control his own destiny, the decisional law of “informed” consent evolved. It was reasoned that a mere consent to medical procedures was largely meaningless unless the treatment, procedures and risks were sufficiently explained to the patient, thus affording the patient a meaningful basis upon which to go forward or refuse the treatment. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).
It is my belief that I.C. §§ 39-4304 and 39-4305 merely codified the decisional case law with an obvious additional built-in protection to the physician. In my view the statutes only provide that for a consent to be valid it must be prefaced with “pertinent facts” pertaining to the need for, the nature of, and the significant risks of the treatment. The required "pertinent facts” must be those which would be given by a like physician practicing in the same community.
I.C. § 39-4305 provides that such consent need not be in writing, but that if the consent is in writing a presumption arises from the fact of the writing. Excepting the elements of maliciousness or fraud, it is presumed that the patient has consented to the treatment and has received sufficient pertinent facts that the consent is “informed.”
In the instant case plaintiff-patient readily admits signing the consent form. Thus, under the statute a presumption arises that *659the physician has furnished the patient with sufficient information to make the patient’s consent “informed.” However, the patient, by way of affidavit, emphatically denies that the physician provided sufficient information regarding any risks of the surgery or any possible alternative methods of treatment. At the point of summary judgment it is axiomatic that all facts, and the inferences arising therefrom, must be construed most favorably in the light of the non-moving party. Ulery v. Routh, 107 Idaho 797, 693 P.2d 443 (1984); Casey v. Highlands Insurance Co., 100 Idaho 505, 600 P.2d 1387 (1979); I.R.C.P. 56(c). Hence, at this juncture it is deemed established that the physician did not furnish sufficient information to make the consent of the patient “informed,” and the theretofore existing presumption is no longer effective nor operative. The fact that the physician, to some extent, asserts byway of affidavit that he did indeed furnish the patient sufficient information to make the consent informed, merely creates an issue of controverted fact the resolution of which is improper at summary judgment.
The presumption created by the statute at issue here is no different than those presumptions in other ^reas of the law. Under the trial court’s interpretation of the statute, the presumption created therein would be well nigh conclusive and irrebuttable. If such were the intent of the legislature it could have, and can be, expressed by a simple language change.