OPINION
HENDLEY, Judge.After consideration of defendant’s motion for rehearing, the original opinion is withdrawn and the following opinion is substituted.
From an adverse judgment in a medical malpractice case, entered pursuant to jury verdict, defendant appeals. The appeal raises three issues: (1) whether a verdict should have been directed or judgment n. o. v. entered; (2) whether certain instructions were correct; (3) whether the court erred in permitting a certain hypothetical question to be asked of an expert witness.
We affirm.
At the close of plaintiff’s case and at the close of defendant’s case, defendant moved for a directed verdict on the grounds of lack of substantial evidence to submit *the issues of medical malpractice, lack of consent to perform surgery, and lack of informed consent to the jury. Both motions were denied and the case was submitted to the jury on the following unobjected to instruction :
“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.
“The defendant denies the plaintiff’s claims.
“If you find that plaintiff has proved those claims required of him, then your verdict should be for the plaintiff.
“If on the other hand, you find that any one of the claims required to be proved by plaintiff has not been proved, then your verdict should be for the defendant.”
The foregoing instruction is in the almost identical "form as the instruction requested by defendant. No special interrogatories were requested. The jury returned a general verdict in favor of plaintiff. Subsequently, defendant moved for judgment n. o. v. or in the alternative a new trial, or in the alternative a remittitur. The trial court denied the motion.
For the purpose of this opinion we assume that the trial court was in error in not granting defendant’s motion for a directed verdict on the theories of medical malpractice and lack of informed consent. See Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961) and its progeny. We are, however, faced with defendant requesting an instruction which submitted the case to the jury on the alternative theory that “one or more of the claimed .acts or omissions was the proximate cause thereof.” This requested instruction was totally inconsistent with defendant’s motion for a directed verdict. Compare Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971).
Defendant’s argument is that we must review the record as of the time of ruling on the directed verdict. However, this is not the rule in New Mexico. Our Supreme Court in Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950), in a similar case regarding the denial of motions for a directed verdict, stated to the effect that an unobjected to instruction becomes the law of the case on appeal. Implicit in Griego is that the court will not go behind the law of the case instruction. Accordingly, we need only determine whether there was evidence to support any of plaintiff’s theories. See also Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276 (1933).
We have reviewed the record and find that plaintiff’s theory of lack of consent to surgery is supported by substantial evidence.
In the following review of the evidence all presumptions and inferences are in favor of the verdict, and all inferences or evidence to the contrary are disregarded. As has frequently been stated it is for the jury and not the appellate court to weigh testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of witnesses and say where the truth lies. Cooper v. Burrows, 83 N.M. 555, 494 P.2d 968 (1972); Durrett v. Petritsis, 82 N.M. 1, 474 P.2d 487 (1970).
In 1963 plaintiff was operated on in Boston for an ileostomy and colectomy. An ileostomy is the creation of an outlet for the small intestine or ileum through the abdominal wall. A colectomy is an excision of all or part of the large bowel or colon. Plaintiff’s ileostomy functioned properly after this surgery.
Plaintiff moved to Albuquerque in 1965 and first consulted the defendant, a general surgeon, on O.ctober 30, 1967. At that time olaintiff was 40 years of age and had a sixth grade education. Plaintiff’s native language was French, and he had some difficulty with English.
Plaintiff consulted the defendant because of a lump located some distance from the ileostomy site. Defendant diagnosed the lump as a hernia. During the examination plaintiff stated that if repair of the hernia in any way involved surgery on the ileostomy that he would return to Boston for the operation. Defendant agreed not to touch the ileostomy.
Plaintiff entered the hospital at approximately 2:00 p. m. on November 12, 1967. On admission plaintiff signed an “Authority to Operate” which described the operation to be performed as “ * * * repair of ventral hernia.”
Sometime subsequent to admission a second “Authority to Operate” was obtained. This document bears two signatures by plaintiff and describes the operation to be performed as “Repair Ventral Hernia & revision of ileostomy and repair of hydrocele.” Plaintiff does not specifically recall, signing this authority to operate. He testified that after having been given a sleeping medication, later identified as Nembutal, he was awakened by a nurse. The nurse said that something had been forgotten and had to be completed. The nurse did not turn the lights on and the plaintiff could not see. She held her finger where the plaintiff was to sign, and he did so. There is an inference that what was signed was the second authority to operate. 'There was medical testimony that Nembutal has a “ * * * hypnotic effect in some forms of use, in that there will be the capability of introducing a state of mifid that is not fully aware of the situation.”
The day after he was admitted plaintiff was taken to surgery. After he was anesthetized defendant proceeded to perform an examination which could not be performed while plaintiff was conscious. The examination consisted of the insertion of defendant’s gloved finger into plaintiff’s ileostomy in a manner and to an extent not possible while plaintiff was conscious. It was during this examination and prior to the making of any incisions that defendant discovered that plaintiff’s hernia protruded from the same opening in the abdominal wall as did the ileostomy. It was at this point that defendant definitely concluded that repair of plaintiff’s hernia would necessarily require relocation or revision of his ileostomy. Defendant proceeded to repair the hernia, revise the ileostomy and repair the hydrocele.
Subsequent to surgery plaintiff developed complications which required surgery on two subsequent occasions and a long course of treatment. Among other treatments, plaintiff’s ileostomy had to be revised again to a location which is inconvenient.
Defendant’s first point on appeal argues that it was error for the trial court to refuse to direct a verdict or grant judgment n. o. v.
The rule applicable in consideration of a motion for directed verdict is that the trial court must view the evidence in the light most favorable to the party resisting the motion, indulge every reasonable inference in support of the party resisting, ignore conflicts in evidence unfavorable to him and not grant the motion if reasonable minds might differ on the conclusion to be reached on the evidence or permissible inferences. Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (1971). In considering a motion for judgment n. o. v: the rule is that the motion is to be granted only when there is neither evidence nor inference from which the jury could have arrived at its verdict. Archuleta v. Johnston, supra.
In support of his argument the defendant- cites the parol evidence rule. Defendant would have us hold that plaintiff is precluded by the parol evidence rule from attempting to show that he did not in fact consent to the revision of his ileostomy by signing the second authority to operate.
Further, defendant cites the case of Grannum v. Berard, 70 Wash.2d 304, 422 P.2d 812 (1967), for the proposition that the law presumes competence in one consenting to an operation and that a patient seeking to avoid the effect of this presumption must present clear and convincing evidence of his lack of capacity to consent.
We begin our discussion by noting that the physician-patient relationship is a fiduciary one. Moore v. Webb, 345 S.W.2d 239 (Mo.App.1961). See Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962). The physician is required to exercise the utmost good faith toward the patient throughout the relationship. We do not inquire whether the physician has gained an advantage in performing surgery or whether his conduct was fraudulent. We only inquire whether the physician violated his fiduciary duty. If he did, any contractual relationship with the patient is void as against public policy. Iriart v. Johnson, 75 N.M. 745, 411 P.2d 226 (1965).
In the present case it is not necessary to go so far as to find that defendant knowingly violated his fiduciary duty. The jury was instructed that plaintiff had the burden of establishing his lack of mental competence at the time he signed the second authority to operate by clear and convincing evidence. Proof of lack of capacity is not precluded by the parol evidence rule. Van Meter v. Zumwalt, 35 Idaho 235, 206 P. 507 (1922). The general verdict in plaintiff’s favor indicates that he bore that burden. The jury having found that plaintiff was not competent at the time he signed the consent, that consent is ineffectual. As pointed out above the defendant knew before making the first incision that repair of plaintiff’s hernia necessarily would involve revision of the ileostomy. ' The jury found that there was no valid consent to such a revision. It follows that defendant is liable for all damages’ proximately caused by the procedures he performed to which plaintiff did not consent. There was medical testimony that all the subsequent medical complications plaintiff suffered were the result of the hernia repair and ileostomy revision. Since the procedure for which a valid consent existed, namely the hernia repair, could not be performed without performing a procedure to which plaintiff had not consented the defendant was in effect without authority to perform either. Having undertaken an unconsented to course of treatment defendant is liable for all damages proximately caused thereby. See Annot. 56 A.L.R.2d 695 (1957). We conclude there was evidence to support the instruction as given.
Defendant’s second point deals with two instructions given by the trial court. The first was the instruction on damages. The relevant portions of that instruction read as follows:
“If you should decide in favor of the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the plaintiff to have resulted from the wrongful conduct of the defendant:
“1. The nature, extent and duration of the injury.
“2. The aggravation of any pre-existing condition, but you may allow damages only for the aggravation itself, and not for the pre-existing condition.
“3. The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury. . . .”
Defendant puts his objection to the first element of the instruction this way: “ * * * Under any view, Dr. Gerety did not inflict a separate injury on plaintiff. * * * ” Defendant goes on to argue that at most what was caused was an aggravation of an existing condition. In considering defendant’s first point on appeal we have concluded that the entire course of surgery performed by defendant was unconsented to and therefore tortious. Under this theory we consider the incisions, sutures and other procedures necessarily involved in the surgery which defendant performed to be injuries inflicted by the defendant. It cannot be argued that these procedures were something from which plaintiff suffered prior to the surgery performed by defendant. On the other hand, the medical testimony makes it clear that the eventual revision of the ileostomy to its present inconvenient location was necessitated by complications which were a result of the unconsented to surgery performed by defendant. This is sufficient justification for the second element of the damage instruction.
Defendant’s objection to the third part of the damage instruction is that plaintiff suffers no present pain from his ileostomy. Defendant also appears to argue that there is no evidence that any possible future pain which plaintiff may suffer will be proximately caused by defendant’s tortious conduct. Defendant’s argument asks this court to indulge in speculation about the basis on which the jury awarded damages for pain and suffering. The jury was properly instructed to award damages only for pain and suffering reasonably certain to be experienced. We will not assume that the jury failed to follow the instructions by not applying the “reasonably certain” standard. In other words, if no pain is reasonably certain to be experienced we assume the jury awarded no damages on that basis.
Defendant’s last objection to instructions pertains to the following instruction :
“The relationship between a doctor and patient is what is known in law as a fiduciary relationship, that is a relationship reposing in faith, confidence and trust and the placing of reliance by one upon the judgment and advice of the other.”
Defendant’s appellate objection to this instruction is that it is “abstract” in that it is not related to the instruction itself to any of plaintiff’s theories of recovery. Defendant overlooks the fact that instructions are read together, and that each need not,, within its own limits, contain all elements. Eidson v. Atchison, Topeka and Santa Fe Railway Co., 80 N.M. 183, 453 P.2d 204 (1969); Roybal v. Lewis, 79 N.M. 227, 441 P.2d 756 (1968). When all the instructions given in this case are read together they fairly present the issues and the law applicable thereto. Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967).
The last issue raised by defendant on appeal deals with the correctness of a hypothetical question asked of an expert witness. This issue pertains to plaintiff’s theory of medical malpractice. As previously discussed, the general verdict returned in this case will be affirmed if any one of plaintiff’s theories is sustained by the evidence. Hopkins v. Orr, 124 U.S. 510, 8 S.Ct. 590, 31 L.Ed. 523 (1888); Berger v. Southern Pacific Co., 144 Cal.App.2d 1, 300 P.2d 170, 60 A.L.R.2d 1104 (1956); Larriva v. Widmer, 101 Ariz. 1, 415 P.2d 424 (1966). Since plaintiff’s theory of lack of consent is supported by the evidence, we do not find it necessary to consider the issue of the hypothetical question which pertains to one of plaintiff’s other theories.
Affirmed.
It is so ordered.
HERNANDEZ, J., concurs. SUTIN, J., specially concurs.