dissenting.
In my opinion the evidence fails to show that Dr. Vann was guilty of any negligence which caused the loss of young Harden’s leg. There is an entire lack of evidence that the infection which developed in the limb and necessitated the amputation was caused by anything which the doctor did or failed to do.
As the majority opinion points out, “It is not contended by counsel for the defendants in error that the fracture was not properly reduced or that the cast was improperly applied. Their contention here is that after the application of the cast, Dr. Vann neglected to pay heed to certain conditions,” namely, the fluctuation in the patient’s temperature and the change in his blood count, which developed shortly thereafter.
It seems to be agreed that the amputation of the leg was necessitated because of cellulitis, which one of the doctors described as “an infection of the subcutaneous tissues.” The majority opinion outlines the chain of causation thus: “There was sufficient evidence for a finding by the jury that cellulitis made the amputation necessary, that the germs of this disease entered through the necrotic spots on the ankle, that the necrotic spots were caused by the pressure of the cast on the nerves and from the lack of circulation, and that these things could have been avoided if Dr. Vann, on October 21, 1944, had exercised the care the law required of him.”
It is said that there is evidence to warrant a finding by the jury that Dr. Vann was guilty of negligence which brought about the unfortunate result in several respects.
*570First, it is said that Dr. Vann failed to see the boy from Saturday, October 21, until Monday, October 30, and that in the meantime the physician was absent from the city and had left no other doctor in charge of the patient.
The testimony is undisputed that when Dr. Vann saw the boy on Saturday, October 21, his temperature was normal and his condition was such that the doctor thought that the patient could be taken home at the convenience of his family. When the boy’s temperature again rose after Dr. Vann left the city, Dr. William A. Simpson, a thoroughly qualified orthopedic surgeon, was called in. He first saw the boy on Tuesday, October 24, cut the cast, and relieved the pressure on the swollen limb. When the patient’s subsequent condition indicated an infection, Dr. W. B. Newcomb, an eminent diagnostician, was called in. They suspected pneumonia or a blood clot in the lung, but x-rays negatived these. The actual cause of the infection then indicated was not disclosed in the evidence. Certainly it was not shown that the infection which subsequently necessitated the amputation was then present.
In the meantime Dr. Simpson saw the patient daily until Dr. Vann returned on Monday, October 30. At that time the boy’s condition had improved to such an extent that Dr. Vann recommended that he be removed to his home at Virginia Beach.
There is no evidence that if Dr. Vann had remained in Norfolk and had seen the boy every day during the week he was absent, he or any other physician could have done more for him than was accomplished by and under the supervision of Dr. Simpson.
Next, it is said that when the boy’s parents called Dr. Vann on November 7, and requested that he come to see him at his home at Virginia Beach, Dr. Vann declined to do so and suggested that the Hardens’ local family physician, Dr. Corpening, be called in. The Hardens called Dr. Corpening, who in turn called in Dr. Simpson, and the two physicians split the cast. There is no evidence that Dr. *571Vann could or would have done more if he had answered the call.
While these two incidents, and certain evidence of the apparent indifference of Dr. Vann to the boy’s suffering (which the doctor denied), were well calculated to appeal to the prejudice of a jury, it is perfectly manifest that they had no causal connection with the result complained of.
In the final analysis the gist of the plaintiffs’ case is that Dr. Vann failed to give the boy proper medical treatment on October 20 or 21. As the majority opinion puts it, the jury could have concluded that at this time “the doctor should have rendered some kind of treatment when he was notified by the father and the boy of the great pressure of the cast and of the excruciating pain,” (Emphasis added.)
Presumably, the “kind of treatment” referred to is that the cast should have been cut, because none other is suggested either in the opinion or in the briefs. But whether that was necessary or proper was a matter of proof to be established by medical testimony.
The undisputed medical testimony here is that a fracture of both bones of the leg is painful and causes high temperature; that the application of a proper cast frequently causes pressure; and that necrotic areas will often develop despite the highest care on the part of the physician.
It should be remembered that the cast was applied— and admittedly properly applied—on October 19. There is no medical testimony whatsoever that it should have been cut on either October 20 or 21, or at any time prior to October 24, when Dr. Simpson did so.
But that is not all. There is not the slightest evidence in the record that if the cast had been cut on October 20 or 21, the cellulitis would not have developed or that the patient’s leg would have been saved. Indeed, as I see it, there is no evidence that Dr. Vann did or failed to do anything which caused the cellulitis.
The undisputed evidence is that the cellulitis did not *572develop until the latter part of December. It was first observed by Dr. C. C. Smith, a surgeon who was called in by Dr. Corpening on December 29, and who operated on the leg and inserted drainage tubes therein.
Dr. Smith is an eminent surgeon who has practiced in. Norfolk for many years. He was called as a witness for the plaintiffs below and when asked the direct question whether, in his opinion, the “cast had anything to do with the cellulitis which developed some time during December,” replied: “The time that had elapsed between the bivalving of the cast and the beginning of the cellulitis in December was a very long time, and I do not see how the cast could have caused the cellulitis that developed in December.” Dr. Vann testified to the same effect.
It is true that Dr. Corpening, who is a general practitioner and who admitted that she had done no “bone work at all,” when asked the same question replied: “Well, I don’t see what else could cause it. I don’t think it was due to infection.” She gave no professional reason or theory how or why the cellulitis could have been caused by the previous pressure of the cast when, as she said, there was no infection on November 7.
In my opinion such testimony constitutes at best a mere scintilla of proof of causal connection (Hardy-Burlingham Min. Co. v. Baker, C. C. A. 6, 10 F. (2d) 277, 281), and is not sufficient to sustain a verdict in this State (Johnson v. Richmond, etc., R. Co., 160 Va. 766, 777, 169 S. E. 603).
Apparently the majority adopts the opinion of Dr. Corpening, for it says that “This conclusion is strengthened by the absence of any explanation by Dr. Vann of some other reasonable way in which the germs entered the plaintiff’s leg.’”
. Since Dr. Vann is the defendant in a tort action, I had thought that the burden was on the plaintiffs to establish the necessary causal connection between the alleged acts of negligence and the result complained of, and not on the physician to prove that “the germs entered the plaintiff’s *573leg” in some manner for which the physician was not responsible.
Dr. Corpening did not testify that the cellulitis would have been avoided if the cast had been cut on October 20 or 21. Moreover, there is no testimony by this witness, or any other, that the necrotic areas through which the germs of infection are supposed to have entered the blood stream were caused by the negligence of Dr. Vann. On the contrary, as has been said, the medical experts agree that such areas frequently result from the application of a proper cast.
The practice of medicine is not an exact science. It is a matter of common knowledge that during the convalescence of a patient from an operation or illness, despite the highest medical skill and attention, complications may arise from unknown causes which will result in disability or death. To say that the physician must guarantee against such results would make him an insurer. The law does not put such a burden upon him. Liability of the physician depends upon proof of negligence which is the proximate cause of the untoward result complained of. The evidence here falls short of this requirement.
For these reasons I am of opinion that the judgment complained of should be reversed and a final judgment entered in favor of Dr. Vann.