(specially concurring).
I would like to add a couple of observations to those set out in the majority opinion.
First, the admitted fact is that plaintiff hired Dr. C. L. Reynolds to perform the transurethral operation on his prostate. He did not hire a resident trainee, nor authorize or consent to one doing the finically exacting procedure. Admittedly, though, a resident did perform the operation thereby engaging in a type of ghost surgery which is condemned by the law as malpractice and by the American Medical Association as “a fraud and deceit and a violation of a basic ethical concept.”1 A surgeon may not, says the A.M.A. article, permit “surgery residents, in training, to perform operations on private patients under the supervision of the patient’s surgeon . . . without the knowledge or consent of the patient.” In light of this it would seem the sole material issue in the case was and is whether defendants damaged plaintiff’s urethra sphincter — an issue which can only be proved circumstantially.
Parenthetically, I should mention that in an effort to justify the unlawful delegation of defendant Reynolds’ surgical duties to a trainee in this case, defendants rely heavily on what they call “accepted” or “customary” practice in Oklahoma City. This excuse, however, is without legal substance primarily because such accepted or custom*1236ary practice of physicians is illegal. To the extent accepted or customary practice is contrary to existing law it affords no protection against liability.
In this country an individual has a “natural right" — which the law recognizes as a legal right — to determine whether to submit to elective surgery or not, and if he does submit, to choose the surgeon who shall perform it. If a patient consents to a particular operation by a particular surgeon, he has, in effect, entered “into a contract authorizing his physician to operate to the extent of the consent given, but no further.” One who operates without consent of the patient commits a wrongful act and is liable therefor in damages. Rolater v. Strain, 39 Okl. 572, 137 P. 96 (1913). The wrongful act renders the one who performs the surgery without consent guilty of a battery and the physician who receives a fee for doing surgery he did not in fact do guilty of obtaining money under false pretenses — a species of fraud and deceit — and breach of contract.
The second point I wish to make is that the foundation facts in the case not only require reliance on the rule of circumstantial evidence but in my opinion they invoke application of a famous facet of the rule— res ipsa loquitur — which creates a presumption of negligence.2 The evidence, in condensed form, is that plaintiff experienced no urinary incontinence before surgery. He did so afterwards. The cause of the leakage was shown by experts to be damage to the sphincter muscle through which the resident defendant gained entrance to the bladder with a Timberlake resectoscope sheath and obturator and a Stern-McCarthy resectoscope, and that the vital muscle had been “resectioned,” that is, a portion had been cut out.
Thus the jury could find — indeed the record discloses no other plausible cause — that the malfunctioning sphincter muscle resulted from a cut during surgery by an instrument under the exclusive control of the trainee and, with regard to the theory of negligence, that in the absence of unskill-fulness or carelessness such injury does not ordinarily occur during a TUR procedure. The other element, damage, is well established.
Res ipsa loquitur being a procedural rule of justice need not be pleaded and plaintiff is entitled to its use if the evidence establishes the foundation facts. Creswell v. Temple Milling Co., Okl., 499 P.2d 421 (1972).
. 209 J.Am.Med.Ass’n 947 (Aug. 11, 1969).
. See St. John’s Hospital & School of Nursing, Inc. v. Chapman, Okl., 434 P.2d 160 (1967); and 76 O.S.1976 Supp. § 21 which reads:
“Presumption of negligence — In any action arising from negligence in the rendering of medical care, a presumption of negligence shall arise if the following foundation facts are first established:
1. The plaintiff sustained any injury;
2. Said injury was proximately caused by an instrumentality solely within the control of the defendant or defendants; and
3. Such injury does not ordinarily occur under the circumstances absent negligence on the part of the defendant.
“If any such fact, in the discretion of the court, requires a degree of knowledge or skill not possessed by the average person, then in that event such fact must be established by expert testimony.”