dissenting.
I respectfully dissent with respect to the majority’s conclusion that the defense of incurred risk is not available to a physician facing a claim of negligent treatment; accordingly, I would also hold that evidence of Spar’s consent to previous surgeries was relevant to such a defense and, therefore, admissible.
*77In discussing the general doctrine of incurred risk, I would not focus on the concept of “venturousness,” inasmuch as the cases cited are distinguishable by involving injuries suffered during the course of activities such as a judo class or a baseball game. See Clark v. Wiegand, 617 N.E.2d 916 (Ind.1993); Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552 (Ind.1987). That said, I nevertheless fully agree with the notion that the defense of incurred risk “demands a subjective analysis into the actor’s actual knowledge and voluntary acceptance of the risk,” and that “the very essence of incurred risk is the conscious, deliberate and intentional embarkation upon the course of conduct with knowledge of the circumstances.” Clark, 617 N.E.2d at 918; Beckett, 504 N.E.2d at 554. Further, I agree that incurred risk
requires much more than the general acceptance of a potential for mishap. Incurred risk contemplates acceptance of a specific risk of which the plaintiff has actual knowledge.
Id. (emphasis in original).
These statements of law lead me to conclude that the defense of incurred risk is a question of fact to be decided by the finder of fact, i.e., that the jury conducts the “subjective analysis into the actor’s actual knowledge and voluntary acceptance of the risk.” Id. Therefore, I part ways with the majority’s conclusion that other than the scenario in which a patient fails to follow the physician’s instructions, the defense of incurred risk is not available in a claim of negligent treatment.
Certainly the case before us contains a series of unusual facts — Spar's initial medical treatments in 1986, subsequent medical procedures, and the medical history in that regard- — -that preceded the treatment which she alleges Dr. Cha negligently provided. I believe that here, Dr. Cha was properly permitted to argue to the jury that it should consider the evidence indicating that Spar knowingly incurred the risk of experiencing the injury that she did, unfortunately, suffer in the course of that treatment.
Finally, I find that the trial essentially presented a battle-of-the-experts as to whether Dr. Cha’s treatment of Spar met the applicable standard of care based upon the facts in this case.5 The jury’s general verdict may be seen to have found most credible those experts testifying that Dr. Cha’s treatment met that standard of care, and to manifest their conclusion that he was not negligent. Therefore, I would affirm.
. Further, because I find that the facts allowed Dr. Cha to argue an incurred risk defense, I would also find that the trial court properly instructed the jury in that regard.