dissenting. I would reverse. Although I have great reluctance to overturn a jury verdict, it is unsupported by the evidence. Harmon v. Ward, 202 Ark. 54, 149 S.W. 2d 575 (1941); A.S. Barboro & Co. v. James, 205 Ark. 53, 168 S.W. 2d 202 (1943); Nuckols v. Flynn, 288 Ark. 1106, 312 S.W. 2d 444 (1958). The verdict reflects sympathy felt by the jury for the injured plaintiff. I, too, feel compassion for the 76-year-old appellee who has obviously suffered greatly. However, I do not feel there is evidence this suffering was proximately caused by the negligent act of the appellant.
The majority finds the answer to the “hypothetical question” propounded to Dr. Bundrick upon redirect examination to be substantial evidence. Here they have enlarged the importance of this exchange between appellee’s attorney and Dr. Bundrick.
Q. And then, doctor, if we didn’t know anything about medicine, if we were a lay jury, and we were just using our own reasoning capacities and if he didn’t have the staph infection and he had the hip surgery that went all the way to the joint and then he broke the wound open and got a staph infection at that site, we would almost of reason necessarily relate the two, would we not?
A. Yes, you would if you know he had a staph infection at the site.
Q. And as a matter of fact, he did have a staph infection at the site, did he not?
A. I can’t say that because I don’t know of any culture of that wound.
This “hypothetical question” is deficient for two reasons:
1. Hypothetical questions can only be posed to experts. It is their design to make use of the expert’s special knowledge and expertise — knowledge and expertise not possessed by a lay jury. The question asked of Dr. Bun-drick asked the expert to abdicate as an expert. His answer is thus lay opinion. “. . . if we didn’t know anything about medicine, if we were a lay jury. . . .” Bartlett v. Argonaut Ins. Co. 258 Ark. 221, 523 S.W. 2d 385 (1975) and Aetna Casualty & Surety Co. v. Murl Pilcher et al, 244 Ark. 11, 424 S.W. 2d 181 (1968) require medical testimony in cases of this nature. This exchange is offered as expert medical testimony as to causation, when in reality it is of no more value than lay testimony. This is not enough to support the verdict.
2. “. . . then he broke the wound open and got a staph infection at that site ...” There is no evidence in the record of staph being detected at the site of the opening of the wound. Dr. Bundrick, on cross-examination, testified there was no evidence of infection at the site of the wound:
Q. Dr. When you saw Mr. Protho in February 1975, what was the condition of the surgical wound when you saw it?
A. Surgical wound was well-healed.
Q. Wat it draining?
A. No.
Q. Based upon this finding, doctor, did you have an opinion as to whether the infection developed at the surgical site?
A. In my opinion, it would be a blood-borne infection because this would be really the only way you could get the infection into the hip joint proper without having a draining sinus. If it came from without and the wound area, I would expect a draining sinus or track which goes down to the hip joint.
Q. In other words, if the staph micro-organism made its entry through a portal being the surgical incision you would expect to have found infection from within the surgical incision itself down into the hip joint?
A. Right, a draining sinus track.
Q. In this particular case, you found none when you first examined him on the first occasion?
A. No, the wound was well-healed.
Q, Did you understand in the history and material that you were able to review that that was true, that the wound never drained?
A. That’s correct.
The answer to the “hypothetical” question is predicated upon there being a staph infection at the site of the opening of the wound. There is absolutely no evidence in the record that the staph infection manifested itself at the opening of the wound. If there is no evidence at all, certainly there is no substantial evidence.
Although the new rules of evidence, particularly 702, permit an expert to give his opinion directly, the appellee resorted to a “hypothetical” question, assuming a fact not in evidence, in order to try to get the desired answer from his own witness, Dr. Bundrick, and circumvent Dr. Bundrick’s unfavorable testimony. The appellee has abused his witness’ testimony.
The jury are apt, especially where there are many expert witnesses and the evidence is voluminous, to remember and accept merely the net opinion of a witness, with little or no reference to the special premises on which it was based. Thus, if a counsel were to select from the testimony the evidential circumstances most favorable to his party, or those least favorable to his opponent, and obtain an opinion thereon, it is obvious that if the jury forgets the partial nature of the opinion’s premises, the opinion may count with them, when perhaps it ought not to count at all. Now the law and the judge cannot, of course, be expected to reject legitimate offers of evidence simply because the jury may occasionally fail to perform its duty intelligently. But the Court may well interfere to prevent questions which are under the circumstances practically valueless, and are either intended or fairly likely to mislead the jury. Some Courts, looking at the not uncommon abuse of the hypothetical question, have properly attempted to forbid the putting of questions whenever the abuse of this sort is probable. 2 Wigmore on Evidence, §682, at page 808-809 (Third Edition, 1940).
Dr. Bundrick’s answer to the “hypothetical” question is the only testimony by a medical expert which supports the appellee’s contention of proximate cause. As a matter of law this hypothetical question posed by the appellee was deficient. The affirmance of the majority based on this “hypothetical” question demonstrates why Wigmore wants courts to abolish the use of the hypothetical question.
The hypothetical question, misused by the clumsy and abused by the clever, has in practice led to intolerable obstruction of truth. In the first place, it has artifically clamped the mouth of the expert witness, so that his answer to a complex question may not express his actual opinion on the actual case. Wigmore, supra §686.
nd no evidence to support the jury verdict other than that of the plaintiff himself. This is not enough. In a situation where the injury or damages are beyond the normal experiences and understanding of a jury, expert testimony is required. This expert testimony does not exist.
The appellant has admitted liability for the negligent incident of the hospital. I would reverse and remand for a determination of the damages owed appellee due to the negligent incident itself. Therefore, I respectfully dissent.