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D described the accepted medical treatment for emphysema as follows: (1) encourage the patient to stop smoking and to move to a dry, pollution-free climate; (2) use medication to lessen the bronchial spasm; (3) use machines to aid the patient in breathing; and (4) employ oxygen therapy. P had emphysema. D removed one of the carotid bodies from his neck. D testified he had employed this surgery since 1962, and by 1966, he had performed it between 1,200 and 1,500 times. In his experience, 85 percent of his patients were helped to some extent, and 15 percent were not helped at all. He acknowledged that the use of this surgery was not generally accepted and was, in fact, highly controversial. Three physicians testifying for P characterized carotid surgery as an unaccepted mode of treatment for emphysema, as a treatment not supported by medical evidence, and as a surgical procedure which had been tried by a number of physicians, found ineffectual, and abandoned. Dr. Longfield testified there was only one accepted medical treatment for emphysema, namely, the use of drugs and machines to assist the patient in breathing. Dr. Longfield asserted that carotid surgery would not benefit anyone suffering from emphysema and that the performance of such surgery would be negligence. Dr. Thompson, a practicing osteopath, agreed that the accepted treatment for emphysema included the use of drugs and machines to assist the patient in breathing. This doctor had no knowledge of any medical support for carotid surgery as a cure for emphysema and no knowledge of any reputable physician using this method, as of 1966, to cure or relieve the symptoms of severe emphysema. Dr. Petty testified upon deposition by written questions that carotid surgery is not an accepted procedure for the cure or treatment of emphysema. The procedure was tried by a number of physicians worldwide, found ineffectual, and abandoned. He stated that the procedure is not beneficial and is potentially harmful. D told P of the risks of the surgical removal of the carotid body in accordance with medically accepted standards and informed P of the risk of death, the possibility of numbness in his jaw and his ear, the danger of a heart attack or a stroke, the possibility of soreness in the windpipe, and the possibility of infection of the prostate gland. D stated he could not guarantee a cure, but instead expressed the hope that the operation would help P. P stated that D did not tell him that 15 percent of those undergoing this surgery did not receive any relief. P insisted D guaranteed to cure his emphysema. P also stated that D represented the incision would be small and that he would no longer need medication for emphysema after the operation. He asserted that D did not tell him that the operation would require the removal of nerves from his neck, did not mention his heart in any way, and did not inform him that the operation might result in high blood pressure. Mrs. Hood, who was present during the conversation, testified that D promised to cure the emphysema, represented that the incision would be small, indicated that there would be no risk or ill effects connected with the surgery, and did not state that he would remove nerves from the neck. The court submitted the case on gross negligence. The jury refused to find D guilty, and the court ruled in D’s favor. The court of appeals reversed. It held that the case should have been tried on an ordinary negligence standard: '[A] physician is not guilty of malpractice where the method of treatment used is supported by a respectable minority of physicians, as long as the physician has adhered to the acceptable procedures of administering the treatment as espoused by the minority.' The court of civil appeals also held there was no evidence to support the submission of the issue of whether D failed to obtain the consent to surgery of P. Both parties appealed. P does not assert that the surgical removal of the carotid body was unskillfully or negligently performed. Nor does P contend that D's diagnosis of emphysema was incorrect. P maintains that it was negligence to utilize this particular surgical procedure as a method of treating emphysema. Both P and D assert the court of civil appeals erred in adopting the 'respectable minority' negligence standard.

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