(dissenting) — I respectfully dissent.
Action for damages for malpractice, and, being a law action, it is before this court solely for the correction of assigned errors. Rule 334, Rules of Civil Procedure. A verdict having been directed at the close of the appellant’s testimony, he is entitled to have the same reviewed in its most favorable light. Roth v. Headlee, 238 Iowa 1340, 29 N.W.2d 923.
Four errors are assigned: (1) Failure to submit the res ipsa loquitur doctrine (2) sufficiency of the evidence to raise a jury question (3) failure to submit the question of abandonment to the jury, and (4) refusal to permit Dr. Fowler to testify as to the standard of care and treatment in the Davenport area.
*1133Appellant’s petition asserts three grounds of negligence as a basis for recovery of damages: (1) Failure to exercise the proper care, skill and knowledge of the ordinary, prudent, average physician and surgeon in the performing of the operation (2) mistaken ligation of the femoral artery instead of the sa-phenous vein, and (3) abandonment of appellant by appellees after the operation, which was the direct and proximate cause of the necessity for the amputations.
The majority opinion rejects the res ipsa loquitur doctrine on a basis of pleading, with which I agree, but irrespective of the pleading, in my judgment, the doctrine is not applicable under the facts in the case. Eisentrager v. Great Northern Ry. Co., 178 Iowa 713, 160 N.W. 311, L. R. A. 1917B 1245; Gebhardt v. McQuillen, 230 Iowa 181, 297 N.W. 301; 38 Am. Jur., Negligence, section 301.
The trial court held that Dr. Fowler was incompetent to testify as to the standard of skill in the Davenport area and this is assigned as error. While I am inclined to agree with the majority holding* that Dr. Fowler should have been allowed to testify on this question, no error can be predicated upon this ruling, since no proffer of proof was made. McKinney v. Clark Brown Grain Co., 232 Iowa 1235, 7 N.W.2d 798; 4 C. J. S., Appeal and Error, section 294(c).
Appellant asserts that the evidence is sufficient to raise a jury question as to the lack of skill and as to the ligation of the femoral artery, and the majority opinion would seem to agree. Upon a careful examination of the record I am unable to agree, and feel that there is no merit in this assigned error. It is fundamental that no negligence can be considered by the jury in arriving at a verdict except the negligence which is charged in the petition. O’Grady v. Cadwallader, 183 Iowa 178, 166 N.W. 755. The issues thus presented — lack of skill and mistaken ligation — are highly technical ones, regarding which the average layman, or juror, even though he be of the highest in+elligence. can have but little, if any, independent knowledge. The courts generally recognize the fact that the correct treatment and probable results are scientific questions and the alleged malpractice in any case must be substantiated by the testimony of expert witnesses. It is the province of experts, physicians and surgeons, *1134to say whether the .treatment and acts of an attending physician in any case were or were not proper. Snearly v. McCarthy, 180 Iowa 81, 161 N.W. 108; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425; Bartholomew v. Butts, 232 Iowa 776, 5 N.W.2d 7; 41 Am. Jur., Physicians and Surgeons, section 129. No presumption of negligence or want of due skill arises from the mere fact that the treatment given was unsuccessful or failed to produce the best results. Piles v. Hughes, 10 Iowa 579; Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716. The plaintiff has the burden of showing a breach of duty. O’Grady v. Cadwallader, supra. To recover for malpractice the evidence must make plaintiff’s theory of cause of injury reasonably probable and more so than any other hypothesis (Ramberg v. Morgan, 209 Iowa. 474, 218 N.W. 492), although it is not necessary that the proof be conclusive nor exclude every other suggested cause or possible theory. See Bartholomew v. Butts, 232 Iowa 776, 5 N.W.2d 7.
As to the questions involved in this assigned error, appellant called two expert witnesses, Dr. Edison F. Fowler, who first saw appellant in 1947, and Dr. Ralph A. Dorner, who performed both amputations.
Dr. Fowler stated, in part:
“There was a block of some type in the femoral artery at the point where the ligation was done. Generally there are several possibilities as to the cause of the block. It -may have been caused by an embolus. * * * The other possibility is that the patient might have had a thrombosis. * * * There is another possibility that it was due to a spasm. * * * The other possibility is of course- that the artery might have been tied. # * * It is possible in a ligation operation that a thrombus would have been caused in an artery. * * * The femoral artery and femoral vein are within two or three millimeters of each other. The saphenous vein joins the femoral vein and consequently it is very close to the artery, also-. * * # As to how a thrombus would occur in an artery when you are- operating on the vein, I would say that if there was damage done to the artery at the time the patient was operated on, a thrombus might be formed. * * * As to any other way that it could be caused, I would say, very rarely; it might occur spontaneously as a coincidence. As a coincidence it might *1135occur one or two times in three or four thousand operations. * * * The fourth possibility is mistaken ligation. * * * It is theoretically possible that the saphenous vein might have been mistaken for the artery. * * * I think you can rule out the possibility of spasm * * I think you can pretty well rule out the possibility of the embolus. * * * I therefore would consider it would have to be one of two possibilities in this case, either thrombus locally or possible ligation, and I don’t think you can rule out definitely which of the two possibilities it is. I cannot say that the thrombus was traumatic in origin * *
Dr. Dorner stated, in part:
“The femoral artery had been occluded in all probability * * * whether it was by surgery, thrombosis or embolism I can’t state, because I didn’t examine the site of the previous operation. I would say that the probability of thrombosis occurring in a femoral artery after saphenous vein ligation is quite rare. * * * The occlusion of the femoral artery could result from a variety of causes * * * I think that it is true that embolisms may form without being attributable to any particular cause. It is usually either a damaged vessel due to arteriosclerotic changes, or due to disease within the vessel or the heart that is usually responsible. # * * I think the main cause of the gangrene was the occlusion of the femoral artery. There would be a multiplicity of causes. * * * I was not aware of the time interval and I would say that the time interval would tend to negative the fact of a ligation of the femoral artery. * * * I think probably the way the gangrene did develop that it would be consistent with a partial occlusion of the femoral artery which retarded the circulation but did not completely cut it oft.”
’ The foregoing is, I believe, a fair digest as to the purport of the expert testimony. Both doctors negative the probability, of a ligated femoral artery. While they do not rule out the possibility of an injury to the artery during the operation, there is not a single word of testimony tending to show that such an injury, if any there was, was due to a lack of skill, care or caution on the part of the surgeon performing the operation, and as this is the specification of negligence charged, there is a fatal lack of proof. As stated in O’Grady v. Cadwallader, supra, 183 *1136Iowa at page 192, 166 N.W., page 759, “* * * in the absence of any showing from those learned in the profession that there was a failure to do that which ought to have been done in the treatment of the injury, or that there was that done which ought not to have been done in the treatment of the injury, there can be no recovery.”
The decision in the majority opinion appears to be based primarily upon the failure of the trial court to submit the issue of abandonment to the jury. Under the record, a jury could well find that on or about June 24 the appellees abandoned the appellant and that he was without medical care, so far as any physician is concerned. The record does not show what, if any, care he received from the nurses and attendants at the Davenport hospital. This abandonment continued until June 27, when appellant was taken to Iowa City and placed under the care of the physicians there, at which time any abandonment that had existed, terminated. The petition specifies “that said abandonment and gross misconduct of said defendants * * * was the direct and proximate cause of the necessity for said amputations.” Thus there is no question involved as to the lack of skill in the original operation. To support a verdict on this assignment of error, it was necessary for the jury to find, upon proper evidence, that the amputations would not have occurred but for the abandonment and it was incumbent upon the appellant to produce evidence to support such a finding. Bamberg v. Morgan, supra.
On June 23 or 24, when appellees last saw appellant, the leg was showing evidence of gangrene to such an extent that appellant was told that an amputation was necessary. He entered the Iowa City hospital on June 27 and it was not until July 7 that the first amputation was made.
Dr. Domer stated:
“When he first came to the hospital I did not know how long he had had gangrene, he could have had it ten or fifteen days. He could have had the gangrene from the 14th up to the 27th of June when I saw him. Gangrene of an extremity doesn’t come on just with a bang, to the degree where the lines of demarcation come in. # * * The line of demarcation hadn’t formed sufficiently for amputation when he came in.”
*1137Dr. Fowler stated:
“Sometimes the amount that you can conserve isn’t in evidence for perhaps a week or two, and as soon as you are quite clear in your mind as to how much you can save, then you can go ahead with the amputation right away, or if you think that you can possibly save a little more, you can delay it on that basis until you are sure. ” * * I should, say in two or three weeks it would become pretty obvious as to what the level of the amputation w-ould be.”
Appellant states that on June 22 Dr. Bessmer stated that the “foot as far as the knee joint” must come off right away. The majority opinion places great importance on this statement and especially the words “right away” as indicating that the delay from June 22, when the statement was made, until June 27, when he entered the Iowa City hospital, was the proximate cause of the necessity for the second amputation on July 21. This conclusion is not warranted by the record. It stands undisputed and on the statements of appellant’s expert witnesses that neither on June 22, when the statement was made, nor on June 24, when the abandonment occurred, nor on June 27, when the abandonment terminated, had the gangrene reached the point of demarcation such as to warrant an amputation. In fact, this line of demarcation did not come until ten days after he entered the Iowa City hospital. While appellant is entitled -to the most favorable view of the testimony, the mere statement that “the foot must come off right away” cannot overcome the statements of the expert witnesses on a technical proposition, such as we have here. As stated in Ramberg v. Morgan, supra, at page 481 of 209 Iowa, page 496 of 218 N.W.:
“Plaintiff, in a case of this character, may not stop upon a showing that the treatment or absence thereof presents a jury question on the pleaded negligence, and then have th$ jury turned loose, to set up their own standards, as nonexperts, as to the proximate cause of death. The only recognized standard, in such eases is essentially within the domain of expert testimony.”
In my judgment, the decision of the trial court was correct and I would affirm the judgment.
WENNERSTRUM and Mantz, JJ., join in this dissent.