dissenting.
I respectfully dissent from Parts III, IV and V of the majority opinion. In my view, the Court should affirm the district court’s order granting a new trial.
With respect to the nondisclosure element (Part III A) of proving a claim based on the doctrine of informed consent pursuant to Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991), the majority reverses the district court’s order granting a new trial as to the first surgery based upon the expert testimony presented by Dr. Brown, the defendant physician, which stated that nasogastric therapy was not a viable alternative to the first surgery. With respect to the second surgery, the Court concluded that the district court failed to make findings upon which the Court could rely with respect to what Dr. Brown did or did not tell Mr. Shabinaw, and that there was no specific finding that Dr. Brown failed to disclose the risks of the surgery.
I agree with the analysis set forth by Judge Bengtson in his memorandum opinion granting the Shabinaw’s motion for a new trial, which was later re-affirmed by Judge Stegner’s decision after remand from this Court in Shabinaw I. Judge Bengtson relied on Cobbs v. Grant, 8 Cal.3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (1972), to note that although the burden of going forward with evidence of nondisclosure initially rests with the plaintiff, once such evidence has been produced, the burden shifts to the physician to go forward with evidence pertaining to the justification for failing to disclose. The majority opinion notes that even though Sherwood v. Carter overruled portions of Rook v. Trout, 113 Idaho 652, 747 P.2d 61 (1987), which relied on Cobbs, the rule regarding the burden of proof remains undisturbed.
Relying on Cobbs, Judge Bengtson made the following comments regarding the first surgery:
As to the first surgery, Dr. Brown was asked by plaintiffs’ counsel whether he agreed “that in this particular ease a viable, favorable, acceptable, appropriate form of treatment for Gene Shabinaw would have been placing a nasogastric tube as an alternative to surgery.” In response thereto Dr. Brown testified: ‘With the power of retrospection, I would agree with you, yes.” This answer followed earlier testimony of Dr. Brown that he did “consider” using a nasogastric tube but did not so advise Mr. Shabinaw. There is no evidence as to why Dr. Brown did not inform Mr. Shabinaw of nasogastric tube therapy or the reasons why he rejected such therapy as an alternative to the first surgery. Dr. Brown simply failed to sustain his burden of explaining the justification for failure to make such a disclosure.
Judge Bengtson then took issue with Dr. Brown’s credibility regarding Dr. Brown’s comment that in retrospect, the nasogastric tube would have been a viable alternative to surgery:
Dr. Brown’s testimony that “with the power of retrospection” he would agree that the insertion of a nasogastric tube was a viable alternative to surgery, undercuts and belies any argument that it was not initially a viable alternative which should have been disclosed to Mr. Shabinaw. The mere fact that a bad and unfortunate result flowed from the first surgery does not *759“in retrospect” suddenly make the nasogastric therapy a viable alternative to surgery. It either was or was not initially a viable alternative regardless of the bad result obtained on the first surgery.
Based upon Dr. Brown’s admission that nasogastric therapy was a viable alternative to the first surgery, and that it was undisputed that Dr. Brown did not disclose this option to Mr. Shabinaw, Judge Bengtson concluded that such therapy was a viable alternative to surgery, and that the jury verdict on this issue as to the first surgery was against the clear weight of the evidence. I agree with this conclusion. Further, although Judge Bengtson mentions the witness’s credibility, I do not believe it is necessary to defer to Judge Bengtson’s credibility determinations to reach the same conclusions. The testimony by Dr. Brown regarding his nondisclosure of the alternative is clear from the record, without reference to credibility aspects of his testimony, such as demeanor. Dr. Brown admits in his brief that credibility is not an issue.
Judge Bengtson further ruled that an even stronger ease existed in granting a new trial with respect to the second surgery, and that the jury’s verdict was again against the clear weight of the evidence. Judge Bengtson again based this ruling on Dr. Brown’s failure to justify why he did not disclose the risks that could follow:
Although Dr. Brown unequivocally testified that he anticipated all the severe complications (except the pulmonary and renal failure and life-threatening sepsis) which manifested after the second surgery, he has failed to meet his Cobbs burden of explaining his justification for failing to dearly disclose such anticipated complications to his patient, Mr. Shabinaw. He posited as such justification the fact that Mr. Shabinaw had previously undergone complicated abdominal surgery. Such fact is not a defense to the plaintiffs’ claim of failure to disclose.
Regardless of the testimony provided by Dr. Brown’s expert witnesses, the focus should have been (and was by Judge Bengtson) on exactly what Dr. Brown told Mr. Shabinaw. According to Judge Bengtson, Dr. Brown had every opportunity to testify as to what information he gave to Mr. Shabinaw, but did not do so:
[Dr. Brown’s] answers to questions on the consent issue were persistently equivocal, and on occasion, evasive. He had, during the extended time he was on the stand, more than adequate opportunity to tell the Court and the jurors just what it was he told Mr. Shabinaw and what it was he did not tell Mr. Shabinaw regarding the alternative or alternatives to the first and second surgeries and regarding the anticipated complications attendant to the surgeries or other alternative procedures. Dr. Brown simply did not avail himself of those opportunities to clearly explain what he told Mr. Shabinaw.
Dr. Brown was clearly under a duty to explain to Mr. Shabinaw, in lay terms, the viable alternatives to both the first and second surgeries as well as to explain to him, likewise in lay terms, the complications that might possibly occur from any specific course of treatment, including surgical treatment, so that Mr. Shabinaw could make an intelligent choice. If defendant did not do so, he had the burden of proving justification for such failure to disclose.
Thus, contrary to the Court’s opinion, Judge Bengtson clearly found that Dr. Brown had not met his burden of proving why he was justified in not making a full disclosure to Mr. Shabinaw about any alternatives to the surgeries and any risks involved. This Court can and should assess Dr. Brown’s testimony as deficient with regard to what he did or did not disclose regarding surgical alternatives and risks simply from a reading of the transcript. It is not necessary for the Court to consider Judge Bengtson’s credibility determinations regarding Dr. Brown’s testimony.
I also agree with Judge Stegner’s analysis in his memorandum decision on remand. Even after reviewing the case in light of the Sherwood decision, as mandated by this Court in Shabinaw I, Judge Stegner did not see any reason to depart from Judge Bengtson’s ruling:
After reviewing Judge Bengtson’s opinion and the Sherwood case, the court finds *760the standard set out by Sherwood did not severely undermine or impair Judge Bengtson’s prior ruling. There is nothing this court can glean from Judge Bengtson’s earlier decision which suggests that the result would be different given the objective medical community standard set forth in Sherwood. Therefore, this court, on remand from the Idaho Supreme Court, declines to modify Judge Bengtson’s earlier decision granting the Shabinaws a new trial.
Judge Stegner’s decision that the Shabinaws should be granted a new trial in the interests of justice and to afford them fundamental fairness should be followed here. The Shabinaws’ case was originally tried under the law set forth in Rook v. Trout, 113 Idaho 652, 747 P.2d 61 (1987). Judge Bengtson thereafter granted the Shabinaws’ motion for a new trial based upon the law as it existed at that time. Rook v. Trout was later partially overruled in Sherwood v. Carter. Thus, in Shabinaw I, this Court remanded that case to the district court to be reviewed under the new standard set forth in Sherwood. Shabinaw v. Brown, 125 Idaho 705, 708, 874 P.2d 516, 519 (1994). The Shabinaws should be given the opportunity to present their case to the jury under the standard set forth in Sherwood, which requires that there be objective evidence of the standard of disclosure in the community. Without awareness of this prospective standard, the Shabinaws’ counsel did not frame questions to. experts regarding what physicians in Moscow would have disclosed about the surgery.
I further disagree with the majority opinion with respect to the causation element of informed consent. The Court states that the record is void of any evidence of causation and that the district court did not make any factual findings in this regard on which the Court can rely. The Court thus concludes that “[a]n essential element of the basis for a new trial on the issue of informed consent is missing.” I do not believe, based upon the procedural history of this case, that the Court is free to reach such a conclusion.
The jury returned a special verdict finding that Dr. Brown neither failed to meet the applicable standard of care in performing the surgeries nor failed to obtain Mr. Shabinaw’s informed consent. The jury never made a determination as to causation or damages, either on the negligence claim or the informed consent claim. In Shabinaw I, this Court rejected the same lack of causation argument that Dr. Browm makes here, namely, that the jury’s special verdict finding of no negligence by Dr. Brown in performing the surgeries necessarily “precludes the Shabinaws from proving that any breach of the standard of care as to informed consent proximately caused injury to Mr. Shabinaw.” (Appellant’s Brief, pg. 29). With respect-to this argument, the Court ruled as follows:
Dr. Brown also asserts that the jury’s verdict on the issue of negligence eliminated the possibility that Mr. Shabinaw’s injuries were proximately caused by the operations. The jury’s determination that Dr. Brown did not operate negligently does not establish that the operations were not the proximate cause of some or all of the Shabinaws’ damages, or that Mr. Shabinaw would not have consented to the operations if he were properly informed. A physician can be liable for failure to obtain informed consent before treatment without being negligent in the actual treatment of the patient.
Shabinaw I, 125 Idaho at 709, 874 P.2d at 520. Thus, the Shabinaw I Court rejected the very same causation argument advanced here. I believe the law of the case doctrine, see Suitts v. First Sec. Bank of Idaho, 110 Idaho 15, 21, 713 P.2d 1374, 1380 (1985); Sun Valley Ranches, Inc. v. Prairie Power Coop., 124 Idaho 125, 129, 856 P.2d 1292, 1296 (Ct.App.1993), precludes a reexamination of any causation issue on this second appeal.
Moreover, the structure of the Shabinaw I opinion reveals that there was no mandate to the district court on remand to reexamine the causation issue, and Judge Stegner did not do so in his memorandum decision. In Shabinaw I, the Court addressed the change in the law created by Sherwood v. Carter, as follows:
In Sherwood, this Court “overrule®-those portions of Rook v. Trout which held that I.C. § 39-4304 merely provides alternative *761defenses to a claim of lack of informed consent, and which held that the statute provides for a subjective patient-based standard of disclosure for informed consent.” Id. at 256, 805 P.2d at 462 (overruling Rook v. Trout, 113 Idaho 652, 747 P.2d 61 (1987).) Because at the time it issued its memorandum decision and order the trial court was bound by case law that has since been overruled, we remand this action to allow the trial court to reconsider its decision in light of the new law. [Citations omitted].
Shabinaw I, 125 Idaho at 708, 874 P.2d at 519. The opinion then goes on to rule on the causation issue as noted above, but does not include any direction to the district court to reexamine the causation issue in light of Sherwood, in contrast to the issue of the subjective versus objective standard of informed consent.
In summary, because in my view Shabinaw I has already ruled upon the same informed consent issue advanced by Dr. Brown on this appeal, and because the Court in Shabinaw I did not mandate the district court to reconsider the causation issue, I respectfully dissent from the causation and related damages holding in the Court’s opinion at Parts III B and C.