¶1(dissenting).
¶2It is my opinion that the majority has failed to state the case from appellant’s point of view as required in passing upon the propriety of an instructed verdict in a case tried to a jury. Hart v. Van Zandt, Tex.Sup.Ct, 399 S.W.2d 791, Abrams v. Brent, 362 S.W.2d 155, Austin, writ ref., n. r. e. Nevertheless, I am of the opinion that the Court has reached a correct result insofar as the lack of medical proof of negligence of appellee, except as noted below, is concerned.
¶3I am of the opinion, however, that an issue of fact was made as to whether ap-pellee committed a trespass upon appellant in inserting or attempting to insert between her vocal cords a rather large plastie tube without explaining to her, since there was no emergency present, the different methods of administering anesthetics and giving her the choice of the method to be employed. This theory of trespass evolves from the doctrine of informed consent of *314the patient to surgery and medical treatment, a doctrine which is generally applicable in malpractice suits. See Scott v. Wilson, 396 S.W.2d 532, San Antonio, application for writ of error pending, Hall v. United States, D.C., 136 F.Supp. 187, affirmed, 234 F.2d 811 (5th Cir.), Mayor v. Dowsett, 400 P.2d 234, Supreme Court of Oregon.
¶4Hall v. United States, supra, holds that this doctrine applies to the administering of anesthetics.
¶5Scott v. Wilson, supra, is the subject of an excellent note in 44 Tex.Law Review, 799. The author was critical of the opinion for the reason that consent to the operation having been given by the patient the duty of the doctor to inform as to the risks involved, he believed, should be determined on the basis of negligence rather than on the theory of assault and battery. This distinction is of paramount importance because if negligence must be established then hard to come by medical testimony must be obtained to sustain it. This would not be true under the trespass theory.
¶6In this case there is, in my opinion, medical testimony upon which negligence of the appellee in failure to explain and give appellant a choice of how the anesthetic was to be administered could be based, which testimony is:
“A … We see the patients in a get-acquainted type visit, and give them some idea of what to expect from the anesthesia standpoint, being careful to allay fears without trying to initiate any.
* ⅝ … ⅜ *
Q Now, you don’t tell the patient, as an accepted procedure, the type method you have selected to administer the anesthesia ?
A We give them a general idea of what to expect from the type of administration, yes.
Q Do they have a choice?
A We give them an opportunity to deny it. Our visit is more of a visit more dependent upon the patient’s response to our being there, our presence. If the patient is anxious to talk, we will stand there or sit there and talk with them as long as they want to, of course, but we don’t like to draw out our pre-operative visit on our own accord.
Q All right. Doctor, you are saying that the patient has a choice or doesn’t have a choice, — do they?
A In the , final analysis, yes, they have a choice.”
¶7An anesthesiologist is responsible for his negligence as is a surgeon. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933. Whether his services are but an “incident” of the operation, as the majority states, is, therefore, of no consequence. Such services are, however, of the greatest importance to the patient since the anesthesiologist holds the life of the patient in his hands.
¶8I respectfully dissent.