dissent">WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because the jury was properly instructed only on negligence as distinguished from battery. The jury verdict was proper.

The testimony of nurse Bowling was that Shirley Coulter complained during the first inflation that the automatic blood pressure cuff was “tight.” Dr. Thomas also testified that the complaint was that the cuff was “tight” or “very tight.” On the contrary, Mrs. Coulter testified that after the first inflation, she stated, “Take it off. I can’t stand it.” Nurse Bowling advised Mrs. Coulter that the blood pressure cuff needed to remain on her arm and that the procedure would soon be completed. The nurse further testified that she did not remove the cuff because complaints of discomfort associated with cuff inflations are not unusual and she had no indication that the patient was being injured by the cuff. Dr. Thomas also testified that such complaints were very common and that it was not severe. When the automatic cuff took a second reading during surgery the patient again complained of tightness and said, “Take it off. I can’t stand it.” Both Dr. Thomas and nurse Bowling testified that it was at this time that they removed the blood pressure cuff pursuant to the direction of the doctor. It should be recognized that the patient was 53 years of age at the time of the surgery in 1992, that she was 5 feet 3 inches tall, weighed over 250 pounds and was then totally disabled by rheumatoid arthritis. The evidence in*526dicates that the patient suffered from a number of problems with her right hand and arm. In addition, there was defense testimony that the median nerve below her elbow had not been injured even indirectly by the blood pressure cuff. The cuff had been applied to the upper arm. The patient had consented to the 15 minute procedure which involved the removal of a mass from her eyelid.

During trial, counsel questioned all the medical personnel present in the operating room during the procedure about the statements that were made at that time. Counsel sought to support the claim that the patient revoked consent to use the automatic blood pressure cuff, however, the jury found against the patient on the revocation of consent argument, evidently based on the testimony of the doctor and nurse. The instructions given by the trial judge correctly related to negligence and not to battery.

Certainly any party to civil litigation is entitled to have their theory of the case submitted to the jury for its acceptance or rejection if there is any evidence to sustain it. Farrington Motors v. Fidelity & Casualty Co., Ky., 303 S.W.2d 319 (1957). The circuit judge did not abuse his discretion in any way in regard to the instructions given.

I conclude that neither the complaints as the patient described them, nor as were described by the medical personnel, constitutes a sufficient expression of revocation. I would affirm the decision of the jury and the Court of Appeals.

JOHNSTONE, J., joins in this dissent.

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