(dissenting):
Plaintiff appeals from a judgment for defendants in action for wrongful death of plaintiff’s intestate allegedly caused by the negligence of defendants in furnishing treatment and facilities for plaintiff’s intestate.
Plaintiff is administratrix of the estate of her mother, Mrs. Stewart.
Defendants are Dr. Jordan, a practicing physician, and East Gadsden Clinic Professional Association. ,
Mrs. Stewart woke up sick on the morning of December 4, 1970. Shortly thereafter, plaintiff came to her mother’s home. Plaintiff testified that she called Dr. Jordan at the hospital and told him that her mother was “hurting in her chest” and that “she felt real funny and she was nauseated.” Plaintiff told the doctor that she was going to bring Mrs. Stewart to the hospital but he told plaintiff to bring her to the Clinic and he would meet her there.
Plaintiff and her father took Mrs. Stewart to the Clinic. The father registered Mrs. Stewart at the desk and told the receptionist that Dr. Jordan would meet them there. A slip for Mrs. Stewart was filled out and the words “Emerg.” and “Nurse sick” were written on the slip. They were told to be seated and wait.
About fifteen minutes after arriving at the Clinic, Mrs. Stewart got sick and had to go to the bathroom. Plaintiff went with her. She vomited. They went back to the waiting room. The father told them at the desk that Mrs. Stewart had to go to a room. After about ten minutes they were taken to the emergency room.
Mrs. Stewart laid on the table in the emergency room. Plaintiff later went to the desk one or two times and told them that she wanted some help. The father went to the desk at least once and also left the emergency room several times.
After plaintiff had asked for something, a nurse came and gave Mrs. Stewart a shot. After receiving the shot, Mrs. Stewart was lying on her side. Plaintiff was sitting in front of her and she was holding plaintiff’s hand. Mrs. Stewart said, “ T believe I feel better.’ ” The next thing that happened was that Mrs. Stewart fell off the table.
Plaintiff testified that the nurse gave the shot “thirty or forty-five minutes, at least” after Mrs. Stewart arrived at the Clinic. In a deposition taken prior to trial, plaintiff testified that from the time they came to the Clinic until the doctors told plaintiff that Mrs. Stewart had expired the time “ ' . . '. must have been around at the most forty-five minutes.’ ”
*261When Mrs. Stewart fell off the table, plaintiff went screaming out of the room. The first person she saw was Dr. Hawkins. She told him that her mother had fallen off the table and was dead. He went “running through.” Dr. Cruit came in next and then Dr. Thompson. Plaintiff knocked on a door and Dr. Jordan came running out and went to see Mrs. Stewart. She was put back on the table and Dr. Hawkins started “pumping at her legs.” Someone asked plaintiff to leave and she went outside the door.
The father, Mr. Stewart, testified that while he was in the emergency room, Mrs. Stewart could hardly breathe, and “I tried to put some oxygen on her.” Plaintiff testified that she did not see her father attempt to give the mother oxygen, and that she was in the emergency room the entire time except on the two occasions when she went out of the room.
Mr. Stewart testified that he had “some experience with oxygen,” that an oxygen tank was in the room, that he tried to turn the thing on, did turn it on, it was spewing out around where a fitting goes on the tank, he could not get oxygen through it, could not find anything to tighten it, and never got oxygen to come out the mask. He testified that the oxygen tank was “not like ours like we use in the plant,” that it was not the same type as the one he was familiar with at the plant, that he had never worked that kind of tank before, that he could not get it to work, and that was after the nurse came in with the shot.
In his deposition, Dr. Jordan testified that oxygen was used that day, that Mr. Stewart told him that Mr. Stewart tried to use it, that at first there was a problem with the oxygen because Mr. Stewart tried to use it and did not know how to use it, that we straightened out the problem right away, that Mr. Stewart did not render the oxygen useless or cause delay in using it, and that the oxygen was connected up to the Ambu machine which was used in the efforts to revive Mrs. Stewart.
In deposition, Dr. Jordan testified that he had known Mrs. Stewart since 1955. During the one-year period prior to her death, she had been in the office only one time which was in January of 1970, when she came in for a general checkup. In September prior to that January she had a complaint of low back pain. She had a history of hypertensive cardiovascular disease for may years; the first time he saw her in the latter part of 1954 was for pneumonia, so it would have been on the first visit that she was hypertensive then; the first visit he saw her was for pneumonia and really did not involve her heart; the first pain that she ever had that related to her heart was her terminal illness; she was treated for high blood pressure but never had any heart pain or angina pectoris ; he had never done an EKG in the office, she might have had one in the hospital sometime, yes, she had one in February 1959; her blood pressure was at that time 180 over 104; there was nothing on the EKG to indicate any heart disease; he did not read this EKG back in 1959, Dr. Chandler, an internist, read it.
Dr. Jordan filled out the death certificate for Mrs. Stewart; it says :
“ ‘Primary cause of death — myocardial infarction, and contribution was hypertensive cardiovascular disease, and then diabetes mellitus’.”
He defined infarction as follows:
“ . . . An area of heart muscle stops getting the blood supply, and by definition it infarcts. In other words, it loses its blood supply, it dies. That’s what an infarction is.”
Dr. Jordan testified that Mr. Stewart called him on the morning of December 4, 1970; the doctor was in the hospital; Mr. Stewart said his wife was having chest pains and had been nauseated; the doctor told Mr. Stewart that he was finishing his rounds and Mr. Stewart agreed to meet him at the office; when Dr. Jordan arrived at the Clinic he went right to work *262there as usual and was doing some sort of surgical procedure; his nurse took Mrs. Stewart to the room and he instructed her to give Mrs. Stewart a shot for relief of pain and nausea, and he would be with her just as soon as he could turn loose what he was doing; the drug prescribed was Talwin and Phenergan, which are usually given for relief of pain; that was the first time he had word on Mrs. Stewart except for the telephone conversation; the nurse came back and said she had given the drugs; within a very short time he was notified that Mrs. Stewart was having trouble; he had just finished what he was doing and went to the room where Mrs. Stewart was.
Three or four doctors were there and two or three nurses. We took turns doing ventilation and cardiac massage. The doctor read “a summary of what we did” as follows:
“A (Reading) ‘Patient came in complaining of pain in her chest and left arm. She was given the above for pain, however the pain continued, and she then suffered a cardiac arrest. Resuscitative measures were done immediately, consisting' of intracardiac adrenalin, times 2, and 3 ampules of sodium bicarbonate and calcium gluconate, 3 ampules. This was through the IV that had been started earlier. The Ambu was used for ventilation after an airway was inserted, and external cardiomassage to maintain her heart. An ambulance was called and responded. However the patient’s heart would not respond, and after some 45 minutes or more, her pupils had remained dilated, fixed, and it was determined by all of the doctors assisting with resuscitation that it was to no avail. She was not transported to the hospital because we never could get any heart beat going.
“ ‘An autopsy was not obtained’.”
After discussion of the standard treatment for persons affected as was Mrs. Stewart, Dr. Jordan testified, among other things, as follows:
“Q All right. Then is there anything in your judgment, Dr. Jordan, that a competent, qualified general practitioner here in Gadsden would have done for treatment of any routine heart attack, in Gadsden in December of 1970, that was not done in this instance under these circumstances ?
“A No, sir.
“Q Then, in summary, was there any element of treatment of a routine heart attack as normally followed by competent physicians in Gadsden in December of 1970, that this lady did not receive at that time, or in your judgment did she receive all elements of treatment afforded?
“A None whatever. Everything was done that could be done or could have been done by anyone.”
Dr. Hawkins testified:
“Q Doctor, I’ll ask you — now Doctor, I’ll ask you, in the standard of care in an incident of that on that occasion, in December of 1970, whether or not Dr. Jordan and the others in the emergency room at the East Gadsden Clinic, exercised the standard of care as to treatment of Mrs. Stewart at that particular time and on that occasion, as exempted by a reasonably prudent and knowledgeable physician in this community at that time ?
‘‘A Most definitely.
“Q Assuming that she was there, came in with a complaint of chest pain, nausea, arm pain, and was there for thirty minutes prior to receiving the shots to relieve her of the pain and anxiety as testified to, I will ask you in your professional opinion, the fact that she waited thirty minutes before she got the shot, *263in any wise affect the ultimate demise of Mrs. Stewart on that occasion ?
“A No, sir.
“Q It would not ?
“A No, sir.
“Q I see. Doctor, was the giving of the shots prior to the actual attack, did that shot — was it designed to cure a condition or alter a condition ?
“A No, sir.
“Q Or was it primarily to relieve pain?
“A As I stated earlier, it was primarily to relieve the pain and anxiety.
“Q It is not given as a curative or as a drug to cure something ?
“A No, sir.
“Q Now Doctor, I’ll ask you this. In your opinion, knowing the factual situation and the condition under Mrs. Stewart’s death, I’ll ask you whether or not in your professional opinion there were any medications or other type treatment that could have been given to Mrs. Stewart other than what was received that would have altered or deferred her having this massive cardiovascular infarction?
“A No, sir.”
When plaintiff rested, defendants moved to exclude plaintiff’s evidence and for the affirmative charge. Defendants offered no evidence. The trial court granted defendants’ motion. Plaintiff assigns the action of the trial court as error.
This court has said:
“In attending a patient a physician or surgeon undertakes to exercise that degree of care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice ordinarily exercise in like cases. A showing that an unfortunate result has followed does not of itself shift the burden of proof. The complainant patient must still show negligence. Moore v. Smith, 215 Ala. 592, 111 So. 918; Carraway v. Graham, 218 Ala. 453, 118 So. 807.
“Ordinarily, in a malpractice case, proof as to what is or is not proper practice, treatment, and procedure, can be established only by expert medical evidence. Snow v. Allen, 227 Ala. 615, 151 So. 468. In such a case lack of expert testimony results in lack of proof of negligence and such proof is essential to establish a plaintiff’s case.” Parrish v. Spink, 284 Ala. 263, 266, 267, 224 So.2d 621, 623.
“There is no requirement of law that a physician should have been infallible in his diagnosis and treatment of a patient. He merely undertakes to exercise that care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily exercise in such cases. In absence of an express agreement, warranting a cure, if he does exercise such care or skill he is not liable for an error in diagnosis and treatment where the proper course was pursued of where ' the proper course is subject to reasonable doubt. A showing of an unfortunate result does not raise an inference of culpability. Carraway v. Graham, 218 Ala. 453, 118 So. 807; McKinnon v. Polk, 219 Ala. 167, 121 So. 539.
“We have often said that evidence which affords nothing more than mere speculation, conjecture or guess is not sufficient to warrant submission of the question of negligence to the jury. Louisville & N. R. Co. v. Rogers, 242 Ala. 448, 6 So.2d 874.
“And that where evidence is equally consistent with either the existence or nonexistence of negligence, the issue should not be submitted to the jury, and that the party who affirms negligence *264has under such circumstances failed to establish it. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90.” Watterson v. Conwell, 258 Ala. 180, 182, 183, 61 So.2d 690, 692.
“In this case the burden of proof was on the plaintiff to show either negligence or want of proper knowledge and skill on the part of the defendants, in their professional treatment of the intestate, which proximately caused the -infection — septicaemia—following Dr. Rosamond’s hypodermic injection of cocodylate of soda into the patient’s arm. And the mere possibility of such a result is not sufficient. Holtzman v. Hoy, 118 Ill. 534, 8 N.E. 832, 59 Am.Rep. 390; State v. Housekeeper, 70 Md. 162, 16 A. 382, 2 L.R.A. 587, 14 Am.St.Rep. 340; Friend v. Kramer, 236 Pa. 618, 85 A. 12, Ann.Cas.1914A, 272.” Moore v. Smith, 215 Ala. 592, 595, 111 So. 918.
In the instant case the only medical evidence by a qualified expert was that of Dr. Jordan and Dr. Hawkins. The evidence fails to show that defendants were guilty of negligence in the treatment of Mrs. Stewart or that any supposed evidence of defendants proximately caused her death.
Plaintiff argues that negligence is shown by testimony that Dr. Jordan knew that Mrs. Stewart had a cardiovascular hypertensive situation for a number of years, that he knew that Mrs. Stewart’s condition could eventually result in a heart attack situation, and that he failed to advise anyone at his office that she was coming. Plaintiff says Dr. Jordan was negligent in not going to see Mrs. Stewart at the Clinic or in having another doctor do so.
Plaintiff argues that the jury could find from the evidence that Mrs. Stewart died as a result of delay in administering the pain relieving drugs. There is no evidence that any supposed delay caused death. There is evidence to the contrary. Dr. Hawkins testified further:
“Q All right, sir, Now, for the purpose of this question, assume that Mrs. Stewart was in the process of having a massive cardiovascular infarction when she came into the Clinic, and she received a shot of Talwin and Phernagan (sic), anywhere from five minutes to twenty minutes or thirty minutes after she got to the Clinic, and shortly thereafter had a massive infarction, I will ask you whether or not the delay, if there is to be called a delay, from the time she got there until she got the shots and had the infarction, would that delay in any way whatever caused, or the lack of giving shots at that time, deferred the massive cardiovascular infarction that she suffered ?
“A No, sir, it would not.”
I am of opinion that the evidence fails to sustain plaintiff’s claim that defendants were guilty of negligence which proximately caused Mrs. Stewart’s death and that the court did not err in directing a verdict for defendants. There was no evidence in the record that the failure of a physician to drop what he is doing in order to diagnose and treat a patient complaining of chest pains and nausea constitutes failure to exercise that degree of care and skill which physicians in the same general community pursuing the same general line of practice would ordinarily exercise in a similar case.
Assignment of Error 7 recites:
“7. The Court erred in concluding that plaintiff was bound by the testimony of the defendant, Dr. Charles D. Jordan, by reading into the evidence the deposition of the defendant, Dr. Charles D. Jordan, contrary to the code of Alabama, 1940 as recompiled 1958, Title 7, Article 6-A, Section 474 (4) b, 474(6). [T. 166, T. 283, T. 285, T. 287].”
The following appears on pages 166 and 167 of the transcript:
“MR. COLEMAN: Judge, at this time we want to read into evidence the deposition of Dr. Jordan.
*265“MR. INZER: If the Court please, at this time we want to object to the anticipated move of Mr. Coleman, that he wants to read into evidence the deposition of the Defendant who is sitting here in Court and is available as a witness.
“THE COURT: I think it is admissible.
“MR. INZER: We object to reading the deposition in part or in its entirety.
“THE COURT: Overruled.
“MR. INZER: We except.
“THE COURT: I think it is admissible.
“MR. COLEMAN: Yes, sir.
“MR. INZER: It is understood that they are making the deposition of Dr. Jordan their testimony.
“THE COURT: He is reading it, but if Dr. Jordan takes the stand, it is not making him his witness then.
“MR. INZER: No, sir. Just the deposition itself.
“MR. COLEMAN: Judge, it is my understanding that a deposition can be used for any purpose.
“THE COURT: Gentlemen of the Jury, some years ago the Legislature provided for the taking of depositions of witnesses and parties prior to the trial of the case. That’s what has been done in this case. Mr. Coleman is now about to have — one party will read the questions and another party will read the answers of the deposition of Dr. Jordan, heretofore taken before this trial.”
Nowhere do I find an objection by plaintiff to any statement or ruling by the court that by reading Dr. Jordan’s deposition plaintiff was making Dr. Jordan plaintiff’s witness.
Plaintiff did offer Dr. Jordan’s deposition. It was admitted and read to the jury. In considering the sufficiency of the evidence to go to the jury, I have not given any effect to the testimony of Dr. Jordan different from the effect that would be given to his testimony if he had been called as a witness by defendants. The question is whether there is competent evidence to support the allegations of the complaint. I have concluded that the evidence is not sufficient. Whatever the trial court may have said with respect to making Dr. Jordan plaintiff’s witness, if error at all, is harmless error and not ground for reversal under Supreme Court Rule 45.
HARWOOD, MADDOX and McCALL, JJ., concur.