(dissenting).
I dissent.
This case is before this court for the third time. In the original decision Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973), a jury decision in favor of the Plaintiff was affirmed. This court held there, among other things, that because the trial court correctly denied directed verdict and judgment n. o. v. motions as to one of Plaintiff’s theories “lack of consent to the operation” it was not necessary to decide whether the trial court was also correct as to Plaintiff’s other theories. The Supreme Court in Gerety v. Demers, 86 N.M. 141, 520 P.2d 869 (1974) reversed, holding that Section 21-l-l(50)(b) N.M.S.A., 1953 (Repl. Vol. 4, 1970) required a decision on the propriety of the trial court’s decision to grant Defendant a directed verdict on Plaintiff’s other two theories: (1) Negligent Surgery; and (2) Lack of Informed Consent.
In this court’s second opinion, Demers v. Gerety, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974), it was determined there was no issue as to causation as it related to negligent surgery and therefore the trial court incorrectly denied Defendant’s motion for a directed verdict on that issue.
On the issue of Lack of Informed Consent, it was simply stated:
“Since our prior opinion decided there was a lack of consent, it goes without saying there could not have been any informed consent.”
The case was retried and Plaintiff now appeals presenting ten points for reversal. The majority has reversed the trial court. I would affirm.
Plaintiff’s Request for trial before another Judge
Plaintiff first argues that the Honorable Gerald D. Fowlie, District Judge, before whom the first trial was conducted, shunned his duty by recusing himself from the retrial. I find nothing in our law that placed a duty on Judge Fowlie to preside at the retrial of this case. State v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966) is no help to Plaintiff. It was not error for Judge Fowlie to have recused himself.
Following Judge Fowlie’s recusal, the case was reassigned to the Honorable Harry E. Stowers who eventually recused himself and the case was then reassigned to the Honorable Maurice Sanchez on June 15, 1976.
Plaintiff argues that because Judge Fowlie’s recusal eventually led to the assignment of Judge Sanchez, Plaintiff was severely prejudiced. A party to a lawsuit has no right to a particular judge. A party to a lawsuit has the statutory right of disqualification set forth in Section 21-5-8, N.M. S.A., 1953 (Repl. Vol. 4, 1970) as well as the right to disqualify pursuant to Article VI, Section 18, Constitution of New Mexico.
Plaintiff filed an affidavit of disqualification pursuant to the noted section against the Honorable Maurice Sanchez. Judge Sanchez correctly refused to honor the affidavit. Plaintiff’s argument on this issue is disposed of completely in Gray v. Sanchez, 86 N.M. 146, 520 P.2d 1091 (1974). That case involved the same district judge and the same factual situation insofar as the timeliness of the attempted statutory disqualification.
In addition to the affidavit of disqualification filed pursuant to Section 21-5-8 supra, Plaintiff sought to disqualify Judge Sanchez pursuant to Article VI, Section 18, Constitution of New Mexico. Plaintiff again relies on Scarborough, supra, and again Plaintiff’s reliance is misplaced. The Supreme Court there held:
“We now declare, in accord with what appears to be the American rule, that an ‘interest’ necessary to disqualify a judge must be a present pecuniary interest in the result, or actual bias or prejudice, and not same indirect, remote, speculative, theoretical or possible interest.” (Citations omitted)
The court did go on to say that “. a person charged with a crime should not be required to proceed to trial before a presiding judge who has openly expressed animosity or hostility”, id. 75 N.M. at 709, 410 P.2d at 736. The court also pointed out that in the two cases therein cited, there was proof that the court favored one side over the other. I find no such evidence in the present case. It should also be noted that the decision in Scarborough, supra, was based upon the Supreme Court’s superintending control over inferior courts as provided in Art. VI, Section 3, New Mexico Constitution. The record here does not reflect any attempt by Plaintiff to prevent Judge Sanchez from proceeding in this cause through the Supreme Court’s same power. Judge Sanchez properly refused to allow himself to be disqualified by either the statutory affidavit or the motion pursuant to Article VI, Section 18, New Mexico Constitution.
Negligent Surgery
The trial court held that the question of negligent surgery had been adjudicated by this court in Demers v. Gerety, 87 N.M. 52, 529 P.2d 278 (1974) and consequently entered judgment for the defendant on that issue (Tr. 127-130). Plaintiff argues that because this court reversed and granted a new trial, the trial should have been open to all issues. Plaintiff relies on language from 58 Am.Jur.2d New Trial 229; Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (1975); Ortega v. Ortega, 33 N.M. 605, 273 P. 925 (1928) and St., ex rel. Bujac v. District Court, 28 N.M. 28, 205 P. 716 (1922). The Am.Jur.2d citation and Bendorf do not support Plaintiff’s position. The two New Mexico cases cited support the trial court’s ruling.
In Bujac the Supreme Court stated:
“A general survey of this whole matter would seem to lead to the conclusion that there is one general, fundamental principle always to be applied, and that is that the appellate court, unless prevented by some limitation upon its powers, should, upon reversal, either render the proper judgment or direct the lower court to do so, except in those cases where such action is prevented by the circumstances, or where legal injustice would thereby result to one of the parties. Ordinarily the parties should go back to the point where the error occurred, and the case should proceed from that point to a conclusion, unless the circumstances prevent such a course. The fact that the infirmity of the case is first disclosed in the appellate court has nothing to do with the matter, and creates new rights in the losing party-
Thus in jury trials if the error occurs prior to verdict there must be a new trial, because the parties cannot be placed in the same position they were in when the error occurred, and before the same jury. This is a rule of necessity. If the error is in the verdict, for example, where it is not supported by substantial evidence, there must at least in civil cases be a new trial, for in such eases there remains no verdict upon which to base the judgment. In such cases, however, it would seem that in the absence of a motion in the trial court for an instructed verdict the complaining party would not be in position to urge the error upon this court, although we might, of our own motion, consider the same. Sais v. City Electric Co., 26 N.M. 66, 188 Pac. 1110. If the error occurred by reason of the court denying a motion for judgment non obstante veredicto, it would be an error of law which should be corrected by directing the district court to enter the proper judgment. If an improper judgment be rendered upon the verdict, the same rule would apply.” id. at 50-51, 205 P. at 725.
Bujac was followed in Ortega and both of these cases come within the rule enunciated in 5B C.J.S Appeal and Error, § 1950 at 513 which reads:
“Whether the whole judgment is vacated and set aside, or only a part thereof, depends on whether the reversal is a general one of the whole judgment or decree, or only a reversal of a distinct part of the judgment. If, on appeal from the overruling of a motion to direct a verdict as to a given issue, there is a reversal, it is a holding that, as a matter of law, such issue was proved or disproved; but, where the appeal is from directing a verdict, then the reversal decides nothing, except that it was error to hold below that there was no question for a jury.”
The trial court properly refused to allow Plaintiff to proceed on the theory of negligent surgery.
Physician-Patient Relationship
In Demers v. Gerety, 85 N.M. 641, 645, 515 P.2d 645, 649 (1973), in discussing the physician-patient relationship, it was noted “We begin our discussion by noting that the physician-patient relationship is a fiduciary one” citing Woods, supra. In Demers v. Gerety, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974), the quoted remark was explained to mean “only that ‘utmost good faith toward the patient’ is required in disclosure of the possible consequences of medical treatment.”
The comment in the first opinion and the explanation in the second were not intended to indicate a requirement that a trial court instruct on the “fiduciary relationship” between physician and patient. To the contrary, I would hold such an instruction is not required and it was not error for the trial court to refuse to give any or all of Plaintiff’s requested Instruction No. 6.
Damages for Unauthorized Operation Instructions
The trial court’s Instruction No. 1 reads: “The Plaintiff claims that he sustained damages and that the proximate cause thereof was the following claimed act of malpractice:
The Defendant performed an operation upon the Plaintiff without first obtaining a legal consent.
The Plaintiff has the burden of proving that he sustained damage and that the claimed act was the proximate cause thereof.
The Defendant denies the Plaintiff’s claim.
If you find that Plaintiff has proved the claim required of him, then your verdict should be for the Plaintiff. If on the other hand, you find that the claim required to be proved by Plaintiff has not been proven, then your verdict should be for the Defendant.”
This instruction when read in conjunction with Instruction Nos. 4 and 6 quoted below show clearly that the jury was instructed on the Plaintiff’s theory that the doctor had a duty to have the legal consent of the patient to perform an operation and that an operation performed without that consent regardless of the consequences was compensable:
“A poor medical result is not, in itself, evidence of any wrong doing by the doctor. The Court has determined, as a matter of law, that Plaintiff has failed to prove that the surgery was negligently performed and you must not consider this question in arriving at your verdict.” “A doctor must obtain a legal consent either by or on behalf of his patient before operating on him.”
It was not error for the trial court to refuse to give Plaintiff’s requested Instruction No. 11:
“Damages arising from an unauthorized procedure may be recovered even though the operation was performed with the utmost care and skill.”
Refused Instructions
Plaintiff contends it was error for the trial court to refuse to give Plaintiff’s requested Instruction Nos. 4, 5, 7, 11, 14, 16 and U.J.I. 17.6. Plaintiff makes two attacks on the trial court’s refusal. Plaintiff first argues that because these instructions were given in the first trial of this case they became the law of the case.
The doctrine of law of the case recognized in this state is that the rule applies to questions specifically decided as well as those necessarily included. Ute Park Summer Homes Association v. Maxwell Land Grant Co., 83 N.M. 558, 494 P.2d 971 (1972). I would hold that uncontested instructions given in the trial of a case which is subsequently retried do not fall within the doctrine of law of the case. Thoroughbred Motor Court v. Allen Co., 296 S.W.2d 690 (Ky.App.1956).
Trial Court’s Instructions 4 & 5
The trial court instructed:
“A poor medical result is not, in itself, evidence of any wrong doing by the doctor. The Court has determined, as a matter of law, that Plaintiff has failed to prove that the surgery was negligently performed and you must not consider this question in arriving at your verdict.” “There is no issue of Dr. Gerety’s competency to perform the surgery of November 13, 1967. You are to disregard any suggestion that the physician did not possess the knowledge and ability to perform the surgery.”
The function of this court is to correct erroneous results and not to correct errors which even if corrected would not change the result. Gough v. Famariss Oil and Refining Company, 83 N.M. 710, 496 P.2d 1106 (1972); Wright v. Brem, 81 N.M. 410, 467 P.2d 736 (1970). An appellant has the burden of showing he is prejudiced by erroneous instructions. Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970).
When the quoted instructions are read in context with all the instructions as they must be they do not present prejudicial error to the Plaintiff.
While I do not approve the specific language of trial court Instruction No. 4, I note that counsel for Plaintiff did invite such an instruction by a persistent attempt to inject the issue of “negligent surgery” into the case. (Tr. 208).
It was not reversible error for the trial court to give its Instructions 4 and 5.