(dissenting).
I am unable to agree with the majority ■opinion.
The record before us indicates that the defendant was a specialist in gynecology with 33 years of experience in this field.
The defendant diagnosed the plaintiff’s physical condition after taking her case history, examining her person and making laboratory tests. The defendant, as an expert, in his professional opinion and judgment determined that she was afflicted by an internal tumor and that she was not pregnant. Defendant advised her of his conclusions and recommended to her that an operation was immediately necessary. It must be assumed that he weighed all symptoms to ascertain whether she was pregnant or had an internal tumor. He was unquestionably faced with a choice of treatment for this plaintiff. That choice was one of judgment. At this point no negligence has been proved, nor any evidence of omissions of any tests that would amount to negligence.
The mistake in the diagnosis became apparent after the incision. At this point certainly the evidence was insufficient to make a prima facie case, for there is no evidence by an expert to show the degree of care required by a physician to properly diagnose pregnancy or an internal tumor.
This leaves only for consideration: Was testimony by plaintiff and her husband of the asserted statements of the defendant sufficient to supply the expert testimony to show negligence on the part of the defendant?
The plaintiff testified that defendant stated in reference to the incision: “I’m sorry, I should have run more tests.”
Plaintiff’s husband, in regard to same matter as to statements made to him by the defendant, testified: “I wasn’t satisfied with the lab reports, she did have signs of being pregnant. I should have had tests run again. I should have made some other tests.” Admittedly if these statements by reasonable inference show negligence on the part of defendant, I would concur in the majority opinion.
I can only infer that after the incision the defendant knew of his mistake. He was sorry. He had been faced with “lab” reports which showed non-pregnancy while on the other hand there were signs of pregnancy. He was faced with making the decision of repeating his “lab” tests *90and delaying an immediately necessary operation or operating immediately. His professional judgment dictated that he perform the surgery that appeared to him, from facts before him, as being immediately necessary.
Certainly defendant was sorry and with “hind sight”, he admitted that he should have run more tests. This to me does not show an admission of negligence on the part of the defendant.
For these reasons I respectfully dissent.
I am authorized to state that Justice HALLEY concurs in the foregoing dissenting view.