dissenting:
I have no serious problem in affirming the directed verdict in favor of the hospital and Dr. Coleman. My dissent is based upon my conclusion that the case should have been submitted to a jury as to the negligence of Dr. Randolph.
A brief statement as to the legal principles involved is appropriate. It is clear that a doctor does not guarantee results. However, negligence of a doctor can be shown either by expert testimony indicating that the community standards were not followed by him or by proven facts or by inferences which by common knowledge may be drawn from the facts. The calling of a medical expert is unnecessary where the facts prove negligence, or where you can infer negligence from the proven facts. See, e. g., Hill v. Gonzalez, 454 F.2d 1201 (8th Cir. 1972). In Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 415, 93 L.Ed. 497 (1949), the Court said, “that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.”
With this in mind, I turn to the evidence. Roy C. Haven was a child of two and one-half years at the time of the procedure performed by Dr. Randolph on May 21, 1964. The procedure was an aortogram in which a solution of Hy-paque was injected. The specific procedure is known as a trans-femoral retrograde aortogram. The transcript shows that a retrograde aortogram means essentially a trans-femoral retrograde aor-togram (T. 534). Following the aorto-gram the boy was discovered to have paraplegia or paralysis from the level of about T-10, thoracic vertebra 10, down (T. 553). Dr. Randolph testified that there was no question in his mind that the paraplegia was. caused because of the aortogram (T. 622) and that it was fair to say that the spinal cord was traumatized somehow. The paraplegia was noted about four hours after the aortogram (T. 624).
The history shows that on May 9 the boy was given Hypaque in an amount of 10 ec.’s administered through a wrist vein. On May 20 he was given an intravenous injection of 10 cc.’s of Hypaque. On May 21 he was given an injection several times referred to as 10 cc.’s in one steady squeeze. Dr. Randolph said as to the amount “make that 9 ce.’s.” (T. 664) A second injection was given of 10 cc.’s fifteen to twenty minutes later (T. 665) so that he received 19 cc.’s of Hypaque within twenty minutes (T. 666). Dr. Randolph testified that it was “important when you get a child — the difference between 9 and 10 and 8” (T. 664) and that he wanted to be careful whether he gave 9, or 10, or 8 (T. 665). He agreed that an aortography was a hazardous procedure. He agreed that the hazard was increased when you have an asthmatic, allergic child of two and a half years with high blood pressure, and it was increased even more when you give 19 cc.’s within a period of 20 minutes (T. 666, 667).
The testimony is not consistent as to whether the manufacturer’s recommendations were known to the Doctor on May 21 or followed. He did say that he was familiar with the inserts that the company had at the time and had read them (T. 726). He also testified that he had seen literature relative to aortogra-phy and that you proportion the injection down for children. This was true whether it was a trans-lumbar or a tran-femoral aortography (T. 749-754). He testified that he scaled it down from 25 cc.’s to 9 ce.’s, that 25 cc.’s was the adult dosage and that 9 cc.’s was a child’s dosage (T. 728*). He also testified that you generally try to give less in an artery than in a vein (T. 653, 654) and in this case that he twice gave the same amount in the artery that he would give in the vein (T. 653).
Dr. Randolph having admitted: 1) that the adult dosage was 25 cc.’s; 2) *1073that this dosage was proportioned down for children; 3) that he administered a total of 19 cc.’s within a period of twenty minutes to a two and a half year old child; and 4) that the aortogram caused the paraplegia, I conclude that without other expert medical testimony that the evidence was sufficient for the jury to infer negligence from these proven facts.
Consequently, I conclude that the trial court should have submitted to the jury the question of whether Dr. Randolph was negligent in using Hypaque in excessive and repeated injections in this two and a half year old boy.
Under the circumstances of the offers as made I find no error in the failure to receive in evidence certain depositions. Portions of these were admissible had the relevant portions only been offered. The trial judge was correct in denying the “scoop shovel” approach.