dissenting.
I agree with the holding of the majority that the trial court properly rendered a take-nothing judgment in favor of Dr. Ye-lin. There is no evidence to support a finding that Dr. Yelin was negligent during the surgical procedure or that he was charged with supervision of the appellant while he was recovering from the surgery and still under the influence of anesthesia. I also agree with the majority on its determination of the points of error dealing with the issue of informed consent.
I disagree with the majority’s holding on the liability of St. Luke’s Hospital, because there was some evidence that the hospital’s personnel failed to exercise ordinary care while the appellant was unconscious in the recovery room.
It is undisputed that the trauma to appellant’s ulnar nerve was caused by some external pressure to the elbow area of his *374arm. Thus, the medical reason for his trauma was conclusively established.
It was also undisputed that the trauma “probably” had occurred in one of two ways: (1) while appellant was unconscious lying on a gurney (stretcher bed) in the recovery room, his arm could have fallen over the side of the gurney rail; or (2) after he regained consciousness in his hospital room, he could have placed his weight on his elbows while moving about in the hospital bed.
Dr. Yelin’s testimony conclusively established that the hospital had the affirmative duty, when an unconscious patient was in the recovery room, to position the patient’s arms so that undue pressure would not be applied to the ulnar nerve. Thus, to show the hospital had been negligent in that duty, the appellant was required to prove, by direct or circumstantial evidence, that the trauma had occurred while he was still in the recovery room.
In my opinion, the appellant met that burden. Both the appellant and his wife testified that he first noticed that his fingers were “asleep” (evidencing the trauma had already occurred) soon after he regained consciousness in his hospital room. Although that testimony was sharply contested, it was not conclusively refuted. Therefore, while the appellant’s evidence was extremely weak, it was legally sufficient to raise a fact issue for the jury.
Contrary to the suggestion in the majority opinion, the appellant was not required to offer expert medical testimony to prove when the trauma probably occurred. That was not an issue requiring medical expertise, and it was a proper subject of circumstantial proof. See Gulf Pipeline Co. v. Bailey, 40 S.W.2d 938, 941 (Tex.Civ.App.—Texarkana 1931, writ dism’d); Washington v. Missouri K. & T. Ry. Co. of Texas, 90 Tex. 314, 38 S.W. 764 (1897).
Based on the testimony of appellant and his wife, a jury could reasonably have concluded that the trauma probably occurred while appellant was still in the recovery room under the influence of anesthesia. Although other evidence in the record might greatly preponderate against that conclusion, I feel the circumstantial proof is legally sufficient to support the submission of an issue to the jury. See Washington v. Missouri K. & T. Ry. Co. of Texas, 38 S.W. 764; J. Weingarten, Inc. v. Obiedio, 515 S.W.2d 308, 311 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r. e.).
I agree with the majority that the facts set forth in Pekar v. St. Luke’s Episcopal Hospital, 570 S.W.2d 147 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.), are similar to those in this case. But there are several factual differences that explain why that holding is not applicable here.
In Pekar, there was expert testimony showing that the plaintiff’s trauma probably resulted from causes not attributable to his hospitalization. Here, the medical testimony conclusively showed that appellant’s ulnar nerve injury was caused by some external pressure to the arm during hospitalization. In Pekar, the theory of the plaintiff’s case required some proof that the defendant hospital was guilty of an affirmative negligent act. Here, appellant was not required to prove an affirmative act, because it was conclusively shown that the hospital had an affirmative duty to prevent injury to an unconscious patient in the recovery room. Indeed, the appellant’s theory of . recovery was based not on an affirmative act, but on the hospital’s negligent failure to perform that duty.
The appellant’s circumstantial evidence, if believed by the jury, was legally sufficient to support a finding that appellant’s injury occurred as a result of the hospital’s negligence in the recovery room. Therefore, appellant was entitled to have an issue submitted on that question.
“[I]f a cause is shown that might produce an event and it being shown that an event of that particular character did occur, it may be inferred that the known possibility produced the result. Plaintiff is not required to exclude an appreciable chance that the event might have occurred in some other way. Expressed *375otherwise, a conclusion of causal connection may be inferred by a balance of probabilities.”
Collier v. Hill & Hill Exterminators, 322 S.W.2d 329, 337 (Tex.Civ.App.—Houston [1st Dist.] 1959, no writ).
In my opinion, the trial court erred in instructing a verdict in favor of St. Luke’s Hospital, and I would reverse and sever that portion of the trial court’s judgment and remand that cause for a new trial.