OPINION
LOPEZ, Judge.
The plaintiffs-appellants (Mr. and Mrs. Charles Cooper), filed suit against Dr. Curry and the defendant-appellee, Memorial Hospital, Inc., (the hospital) to recover damages for injuries connected with eye surgery performed upon Mrs. Cooper by Dr. Curry at the hospital. Both plaintiffs sought damages for the resulting total blindness to Mrs. Cooper. The jury returned a verdict for the plaintiffs in the amount of $600,000.00 against Dr. Curry, but found the hospital not liable. The appellants now appeal the judgment in favor of the hospital. Dr. Curry is not a party to this appeal. We affirm.
The plaintiffs present several points for reversal: (1) the hospital had a duty to obtain an informed consent from Mrs. Cooper; (2) the trial court erred in excluding certain evidence; (3) the trial court committed prejudicial error by refusing to give an instruction on joint venture; and (4) the trial court committed prejudicial error in giving its Instruction No. 34, which disclaimed the hospital’s vicarious liability.
Facts
Mrs. Cooper was admitted to the hospital for a bilateral cataract extraction. When Mrs. Cooper entered the hospital, the admitting clerk had Mrs. Cooper sign a standard consent for surgery form. Mrs. Cooper had discussed the operation with Dr. Curry before going to the hospital. She had approved the operation on both eyes, and had requested that both cataracts be removed during one hospital stay. The first operation was on her right eye and the second operation was on her left eye. Mrs. Cooper did not sign a second consent form before the second operation. Subsequent to the second operation, she became blind.
At trial, the plaintiffs contended that Dr. Curry failed to disclose all the pertinent facts relevant to Mrs. Cooper’s condition; failed to warn the plaintiffs of the inherent risks involved; and did not get an informed consent from Mrs. Cooper. The plaintiffs also contended that the hospital failed to get an informed consent, or failed to determine whether an informed consent had been obtained.
The court gave its instructions, among which was Instruction No. 34, which generally instructed the jury that the hospital could not be found liable on the basis of Dr. Curry’s malpractice.
Point'I
The hospital had no duty to obtain an informed consent from Mrs. Cooper.
The informed consent issue arises when a patient is informed that he or she is to be touched in a specific way and is in fact touched in that way but a harmful result arises from a risk about which the patient was not informed. Plant, An Analysis of an Informed Consent, 36 Fordham L.Rev. 639, 656 (1968).
Mrs. Cooper testified that she knew she was to have a bilateral cataract operation; she consented to the operation; and such an operation was performed. However, Mrs. Cooper testified that she was not fully informed of the risks involved in the bilateral cataract operation. The question we must decide is whether the hospital had a duty either to inform Mrs. Cooper of the risks involved in the bilateral cataract operation or to determine whether an informed consent had been obtained.
We first discuss the history of the doctrine of informed consent and the history of a hospital’s liability for malpractice committed on a patient while in a hospital. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (N.Y.App.1914), was one of the earliest cases to deal with the subject. That case establishes a medical patient’s right to control his or her own body in relation to treatment, and gives such patient a cause of action for assault and battery when medical treatment is administered without consent.
Salgo v. Leland Stanford Jr. University Bd. of Trust., 154 Cal.App,2d 560, 317 P.2d 170 (1957), a major case in the development of modern informed consent law, requires that a physician not only obtain consent to treatment, but also inform the patient of sufficient facts to enable the patient to intelligently consent to treatment. A failure to do so results in a cause of action for negligence. In New Mexico, a physician’s failure to obtain an informed consent constitutes negligence. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); accord, Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973), rev’d on other grounds, 86 N.M. 141, 520 P.2d 869, on remand, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974).
Schloendorff, supra, also addressed the issue of a hospital’s liability vis-a-vis the acts of physicians in the performance of an operation without a patient’s consent. Schloendorff, supra, posited one rationale for relieving the hospital of liability. The court said that the relationship between a hospital and a physician was not a master-servant relationship, but was instead one in which the physician operated as an independent contractor. The doctrine of respondeat superior was therefore inapplicable.
After Schloendorff, supra, courts expanded the liability of hospitals for the torts of employees, including physician-employees, under the doctrine of respondeat superior. Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957); Westbrook v. Lea General Hospital, 85 N.M. 191, 510 P.2d 515 (Ct.App.1973), cert. denied, 85 N.M. 228, 511 P.2d 554 (1973). However, courts remain reluctant to hold hospitals liable for torts committed by non-employee physicians. Courts consider it irrelevant that a physician has “staff privileges” at a hospital, since such privileges merely permit the physician to use the hospital for his or her private patients. As stated in South-wick, The Hospital as an Institution—Expanding Responsibilities Change Its Relationship with the Staff Physician, 9 Cal.W.L.Rev. 429, 440 (1973):
[A] staff doctor having no more relationship to the hospital than a staff appointment is solely responsible for his personal malpractice or negligence: The hospital is not vicariously liable for the tort of a physician who is not an “employee”.
See Smith v. Klebenoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.1972), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972); 41 C.J.S. Hospitals, § 8 (1944).
The majority view is that when a physician receives no salary from a hospital, he or she is an independent contractor, and, as such, the hospital is not liable for the doctor’s malpractice. Hundt v. Proctor Community Hospital, 5 Ill.App.3d 987, 284 N.E.2d 676 (1972); Mayers v. Litow, 154 Cal.App.2d 413, 316 P.2d 351 (1947); Lundahl v. Rockford Memorial Hospital Association, 93 Ill.App.2d 461, 235 N.E.2d 671 (1968); Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296 (1967).
Plaintiffs concede that Dr. Curry was not an employee of the hospital. They attempt, however, to lay legal responsibility on the hospital under a corporate negligence theory. In a few instances, courts have imposed liability on hospitals under a corporate negligence theory, but this liability has been limited to the negligent granting of staff privileges or the negligent supervision of treatment. Mitchell County Hospital Authority v. Joiner, 229 Ga.
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OPINION
LOPEZ, Judge.
The plaintiffs-appellants (Mr. and Mrs. Charles Cooper), filed suit against Dr. Curry and the defendant-appellee, Memorial Hospital, Inc., (the hospital) to recover damages for injuries connected with eye surgery performed upon Mrs. Cooper by Dr. Curry at the hospital. Both plaintiffs sought damages for the resulting total blindness to Mrs. Cooper. The jury returned a verdict for the plaintiffs in the amount of $600,000.00 against Dr. Curry, but found the hospital not liable. The appellants now appeal the judgment in favor of the hospital. Dr. Curry is not a party to this appeal. We affirm.
The plaintiffs present several points for reversal: (1) the hospital had a duty to obtain an informed consent from Mrs. Cooper; (2) the trial court erred in excluding certain evidence; (3) the trial court committed prejudicial error by refusing to give an instruction on joint venture; and (4) the trial court committed prejudicial error in giving its Instruction No. 34, which disclaimed the hospital’s vicarious liability.
Facts
Mrs. Cooper was admitted to the hospital for a bilateral cataract extraction. When Mrs. Cooper entered the hospital, the admitting clerk had Mrs. Cooper sign a standard consent for surgery form. Mrs. Cooper had discussed the operation with Dr. Curry before going to the hospital. She had approved the operation on both eyes, and had requested that both cataracts be removed during one hospital stay. The first operation was on her right eye and the second operation was on her left eye. Mrs. Cooper did not sign a second consent form before the second operation. Subsequent to the second operation, she became blind.
At trial, the plaintiffs contended that Dr. Curry failed to disclose all the pertinent facts relevant to Mrs. Cooper’s condition; failed to warn the plaintiffs of the inherent risks involved; and did not get an informed consent from Mrs. Cooper. The plaintiffs also contended that the hospital failed to get an informed consent, or failed to determine whether an informed consent had been obtained.
The court gave its instructions, among which was Instruction No. 34, which generally instructed the jury that the hospital could not be found liable on the basis of Dr. Curry’s malpractice.
Point'I
The hospital had no duty to obtain an informed consent from Mrs. Cooper.
The informed consent issue arises when a patient is informed that he or she is to be touched in a specific way and is in fact touched in that way but a harmful result arises from a risk about which the patient was not informed. Plant, An Analysis of an Informed Consent, 36 Fordham L.Rev. 639, 656 (1968).
Mrs. Cooper testified that she knew she was to have a bilateral cataract operation; she consented to the operation; and such an operation was performed. However, Mrs. Cooper testified that she was not fully informed of the risks involved in the bilateral cataract operation. The question we must decide is whether the hospital had a duty either to inform Mrs. Cooper of the risks involved in the bilateral cataract operation or to determine whether an informed consent had been obtained.
We first discuss the history of the doctrine of informed consent and the history of a hospital’s liability for malpractice committed on a patient while in a hospital. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (N.Y.App.1914), was one of the earliest cases to deal with the subject. That case establishes a medical patient’s right to control his or her own body in relation to treatment, and gives such patient a cause of action for assault and battery when medical treatment is administered without consent.
Salgo v. Leland Stanford Jr. University Bd. of Trust., 154 Cal.App,2d 560, 317 P.2d 170 (1957), a major case in the development of modern informed consent law, requires that a physician not only obtain consent to treatment, but also inform the patient of sufficient facts to enable the patient to intelligently consent to treatment. A failure to do so results in a cause of action for negligence. In New Mexico, a physician’s failure to obtain an informed consent constitutes negligence. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); accord, Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973), rev’d on other grounds, 86 N.M. 141, 520 P.2d 869, on remand, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974).
Schloendorff, supra, also addressed the issue of a hospital’s liability vis-a-vis the acts of physicians in the performance of an operation without a patient’s consent. Schloendorff, supra, posited one rationale for relieving the hospital of liability. The court said that the relationship between a hospital and a physician was not a master-servant relationship, but was instead one in which the physician operated as an independent contractor. The doctrine of respondeat superior was therefore inapplicable.
After Schloendorff, supra, courts expanded the liability of hospitals for the torts of employees, including physician-employees, under the doctrine of respondeat superior. Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957); Westbrook v. Lea General Hospital, 85 N.M. 191, 510 P.2d 515 (Ct.App.1973), cert. denied, 85 N.M. 228, 511 P.2d 554 (1973). However, courts remain reluctant to hold hospitals liable for torts committed by non-employee physicians. Courts consider it irrelevant that a physician has “staff privileges” at a hospital, since such privileges merely permit the physician to use the hospital for his or her private patients. As stated in South-wick, The Hospital as an Institution—Expanding Responsibilities Change Its Relationship with the Staff Physician, 9 Cal.W.L.Rev. 429, 440 (1973):
[A] staff doctor having no more relationship to the hospital than a staff appointment is solely responsible for his personal malpractice or negligence: The hospital is not vicariously liable for the tort of a physician who is not an “employee”.
See Smith v. Klebenoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.1972), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972); 41 C.J.S. Hospitals, § 8 (1944).
The majority view is that when a physician receives no salary from a hospital, he or she is an independent contractor, and, as such, the hospital is not liable for the doctor’s malpractice. Hundt v. Proctor Community Hospital, 5 Ill.App.3d 987, 284 N.E.2d 676 (1972); Mayers v. Litow, 154 Cal.App.2d 413, 316 P.2d 351 (1947); Lundahl v. Rockford Memorial Hospital Association, 93 Ill.App.2d 461, 235 N.E.2d 671 (1968); Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296 (1967).
Plaintiffs concede that Dr. Curry was not an employee of the hospital. They attempt, however, to lay legal responsibility on the hospital under a corporate negligence theory. In a few instances, courts have imposed liability on hospitals under a corporate negligence theory, but this liability has been limited to the negligent granting of staff privileges or the negligent supervision of treatment. Mitchell County Hospital Authority v. Joiner, 229 Ga. 140, 189 S.E.2d 412 (1971); Darling v. Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965). In no case has a hospital been held liable for failing to obtain an informed consent.
The court in Fiorentino, supra, even stated that the only possible reason for requiring a hospital to obtain consent might be the nature of the operation. The court then negated this, saying:
So long as it cannot be said that a spinal-jack operation is per se an act of malpractice, the hospital does not share and should not share in the responsibility to advise patients of the novelty and risks attendant on the procedure. [Emphasis added] Fiorentino, supra, 280 N.Y.S.2d at 380, 227 N.E.2d at 301.
Plaintiffs’ position, that hospital liability arises from the admission clerk’s failure to fill out the consent form fully and the hospital’s failure to obtain a second consent form, runs counter to the purposes of obtaining an informed consent. We agree with Stivers v. George Washington University, 116 U.S.App.D.C. 29, 320 F.2d 751 (1963) where the court said:
While the consent to the operation was obtained in writing by a lay employee it seems clear he was performing only a ministerial or administrative function to implement the consultation between appellant [the patient] and Dr. Barrett [the doctor]; a lay person would not be competent to describe the procedure or discuss the possible consequences. [Emphasis added]
Based upon Stivers, the admission clerk was merely performing an administerial function for Dr. Curry who had sent Mrs. Cooper to the hospital. The admission clerk could not be expected to inform Mrs. Cooper fully about all the risks of the operation she was about to undergo, and the hospital cannot be held liable for the clerk’s failure to obtain an informed consent. For the admission clerk to have asked Mrs. Cooper questions regarding the operation would have interfered with the doctor-patient fiduciary relationship. Demers v. Gerety, supra; Fiorentino v. Wenger, supra.
Hospital liability should not be extended in the area of informed consent. Such an extension would serve to interfere in the delicate doctor-patient relationship. It would discourage hospitals from allowing physicians to use their facilities for novel or experimental medical procedures and could induce hospitals to discourage patients from undergoing such operations. Fiorentino v. Wenger, supra.
The facts support the trial court’s ruling that the hospital was not liable for the negligence of the doctor because he was an independent contractor. We conclude that the hospital did not have a duty to obtain an informed consent from Mrs. Cooper.
Point II
Exclusion of Dr. Schultz’ testimony.
Under this point the plaintiffs argue that the court erred in excluding Dr. Schultz’ testimony regarding Dr. Curry’s malpractice because it was relevant to the question-of whether the hospital exercised due care in the reappointment of its staff physicians.
We fail to see anywhere in the record where Dr. Schultz’ testimony would have borne any relationship to the hospital’s duty of care in staff reappointments. Part of Dr. Schultz’ testimony went to alleged acts that occurred from four to ten years prior to his testimony. The trial court properly considered the remoteness and vagueness of the testimony in determining the probative value of the testimony. In re Williams’ Will, 71 N.M. 39, 376 P.2d 3 (1962).
Another portion of Dr. Schultz’ testimony went to Dr. Curry’s excessive visits to welfare patients. While this might show that Dr. Curry was taking advantage of the Welfare Department, it hardly demonstrates an incompetence relevant to the hospital’s duty to exercise care in staff reappointments.
Further, at no time during this time, did Dr. Schultz convey this information regarding Dr. Curry’s incompetence to the hospital. In Hull v. North Valley Hospital, 159 Mont. 375, 498 P.2d 136 (Mont.1972), the same question of hospital liability for'appointment of an incompetent physician was at issue. The plaintiff in Hull, supra, introduced opinion testimony of other doctors on the staff. The court there said:
“Knowledge within these doctors’ minds, uncommunicated to the Board, is not a demonstration of knowledge of the Board as a matter of law, only a matter of conscience of the individual doctors.”
The tendered testimony was inadmissible with regard to Dr. Curry. It was completely irrelevant with regard to the hospital’s liability.
Point III
The hospital and Dr. Curry were not engaged in a joint venture.
Appellants argue that a joint venture existed because the doctor and the hospital had a community of interest in treating the plaintiff. This has been held to be insufficient to create a joint venture. Underwood v. Holy Name of Jesus Hospital, 289 Ala. 216, 266 So.2d 773 (1972). In Underwood, supra, at 776 the court said:
“As a general rule, in order to constitute a joint adventure there must be a community of interest in the performance of a common purpose, a joint proprietary interest in the subject matter, a mutual right to control, a right to share in the profits, and a duty to share in any losses which may be sustained.” [Emphasis added]
Accord, Fullerton v. Kaune, 72 N.M. 201, 382 P.2d 529 (1963). The elements of a joint venture are absent in the relationship between Dr. Curry and the hospital. The record does not show that Dr. Curry had a proprietary interest in the hospital’s property, that there existed a mutual right to control, or that Dr. Curry was to share in the hospital’s profits or losses. As such, there was not even a colorable showing of joint venture.
Under the facts and the law the hospital was not engaged in a joint venture with Dr. Curry. A party to a suit is entitled to an instruction of his theory of the case if there is evidence to support such an instruction. Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). There was no evidence to support a theory of joint venture in the case at bar and the trial court properly refused such an instruction.
Point IV
The trial court did not commit prejudicial error in giving Instruction No. 34.
Under this point plaintiffs contend that the court erred in giving its Instruction No. 34 which basically instructed the jury that the hospital could not be found liable on the basis of Dr. Curry’s malpractice.
This issue is not before this Court because the plaintiffs failed to challenge the court’s Instruction No. 34 in the proceedings below. Gonzales v. Allison & Harvey, Inc., 71 N.M. 478, 379 P.2d 772 (1963).
The trial court committed no error. The judgment of the trial court is affirmed.
IT IS SO ORDERED.
HERNANDEZ, J., concurs. SUTIN, J. (dissenting).