ever, on the mere conjecture of uneducated persons and nonexpert witnesses as to the propriety of his treatment; the question is one which must be determined largely upon expert evidence.58 And proof showing a mere conjectural possibility that unfavorable results were due to want of care or skill is not sufficient.57 And mere failure on the part of a physician to effect a cure does not establish or raise a presumption of a want of care on his part;58 nor does the imperfect or only partial success of a surgical operation;59 or the mere failure to discover a fracture or dislocation.60 And the fact that a patient grew worse under a physician's treatment, and became better afterwards, is not evidence of improper treatment.61 And a change of treatment does not tend to show previous improper treatment;62 though a mistake in treatment and the necessity of a second operation afford some evidence of improper practice, which should go to the jury.63 Nor is general incompetency established by proof that the action for malpractice is involved does not have the effect to prove the nonexistence of the fact testified to by him. Wells v. World's Dispensary Medical Asso. 9 N. Y. S. R. 452. Wurdemann v. Barnes, 92 Wis. 206, 66 N. W. 111; Quinn v. Higgins, 63 Wis. 664, 53 Am. Rep. 503, 24 N. W. 482; De Long v. Delaney, 206 Pa. 226, 55 Atl. 965. And see Ewing v. Goode, 78 Fed. 442; Gores v. Graff, 77 Wis. 174, 46 N. W. 48; Barker v. Lane, 23 R. I. 224, 49 Atl. 963. 7 Martin v. Courtney, 87 Minn. 197, 91 N. W. 487. Testimony of a physician in an action for malpractice in caring for an injured hand, that the operation was a good job, and that he did not consider it negligent, but that he thought they could have saved the thumb, is of no probative force to show negligence on the part of the attending surgeon, and does not justify the submission of the question of malpractice to the jury. Pepke v. Grace Hospital, 130 Mich. 493, 90 N. W. 278. Lawson v. Conaway, 37 W. Va. 159, 18 L. R. A. 627, 38 Am. St. Rep. 17, 16 S. E. 564; Wohlert v. Seibert, 23 Pa. Super. Ct. 213. The jury in an action for malpractice cannot draw the conclusion of unskilfulness upon the part of a physician from the result of the treatment; that the treatment was improper must be shown by evidence. Sims v. Parker, 41 Ill. App. 284. 59 Piles V. Hughes, 10 Iowa, 579; Whitesell v. Hill, 101 Iowa, 629, 37 L. Especially is this so as against the testimony of practising physicians tending to prove, not only that the treatment and appliances used were approved by medical writers of eminence and authority, but also that the benefit resulting from such treatment was all that could be expected, and was extraordinary in view of the severity of the injury. Stevenson V. Gelsthorpe, 10 Mont. 563, 27 Pac. 404. Richards v. Willard, 176 Pa. 181, 35 Atl. 114; James v. Crockett, 34 N. B. 540. But it may be considered in conneetion with all of the other evidence in the case, in determining whether or not he used ordinary skill and care to ascertain the character of the injury. Richards v. Willard, 176 Pa. 181, 35 Atl. 114. Wurdemann v. Barnes, 92 Wis. 206. 66 N. W. 111. Nor does mere proof of negligenec. carelessness, or inattention causing pain and suffering, authorize a recovery in an action for malpractice alleged to have rendered amputation necessary. Moor v. Teed, 3 Cal. 190. Wood v. Barker, 49 Mich. 295, 13 N. W. 597. Sawdey v. Spokane Falls & N. R. Co. defendant engaged largely in other pursuits;64 or by the fact that in making an amputation he used crude and unusual implements.65 And if a physician adopted treatment not of any particular school in the abstract, but of his own particular school, which he publicly professed and practised, and the medical testimony offered by the plaintiff in an action against him for malpractice related to treatment prescribed by a different school, such testimony should be weighed, not alone with regard to bias or prejudice influencing the testimony of the witnesses, but with regard to bias or prejudice which might influence or incline the jury in favor of one school rather than the other.66 Proof that a physician accepted offered employment, however, is sufficient to sustain an averment that he was employed at his special instance and request;67 and to sustain an action it is not necessary to establish gross culpability: mere evidence of want of proper or ordinary care or skill in the discharge of duty by a physician is sufficient to take the case to the jury.68 And failure to discover a severe internal rupture, after complaint by the patient of local suffering, is sufficient to establish actionable negligence.69 So, the fact that, after the healing of a fracture of an ankle, the foot was crooked and the ankle joint stiff, is sufficient to go to the jury;70 and so is evidence of negligence and unskilfulness in handling a broken limb at the time 30 Wash. 349, 94 Am. St. Rep. 880, 70 Pac. 972. And where it appears that a patient put himself under the care of a physician for the purpose of an operation upon his leg, and the right leg was prepared by the nurse under his direction, and the patient was put under the influence of chloroform, and the physician disputed the fact that it was the right leg that was to be operated upon, and failed to wait to hear from an inquiry by telephone addressed to the family of the patient, but proceeded to operate upon the left leg under direction of the patient's father, who was not there at the patient's request, there is sufficient evidence of negligence to go to the jury. Sullivan v. McGraw, 118 Mich. 39, 76 N. W. 149. Mayo v. Wright, 63 Mich. 32, 29 N. Alder v. Buckley, 1 Swan, 68. 1116. Musser v. Chase, 29 Ohio St. 577. And proof in an action for malpractice, that the defendant was a farmer by general occupation, but that he also held himself out as a cancer doctor having skill and experience in the treatment and cure of cancers, and claimed to be in possession of a prescription procured from a cancer specialist that would remove cancers, not only sustains the averment that he was employed as a physician, but brings him within the rule of law which requires the exercise of such skill and care as are usually possessed and employed by general physicians in the treatment of such maladies. Ibid. 6sLink v. Sheldon, 136 N. Y. 1, 32 N. E. 696. And see Degelau v. Wight, 114 Iowa, 52, 86 N. W. 36; Leisenring v. La Croix (Neb.) 94 N. W. 1009. And evidence that a physician did not immerse his instruments in boiling wa ter after use, in an action for malpractice, is sufficient on the question of their septic condition to warrant a hypothetical question addressed to a physician with respect to the effect of a puncture by an instrument not properly steril ized. Bower v. Self (Kan.) 75 Pac. 1021. of reducing the fracture, on the question of whether or not the setting was a bad job.71 518. Opinions as to propriety of treatment.-A physician called as a witness in an action for malpractice may be called upon for his opinion, based upon the facts, as to whether they indicate that care and attention upon the part of the defendant which the case demanded.72 And whether the present condition of the patient is as good as the average condition in case of treatment by a skilled physician is a proper question for an expert.73 Nor is it incompetent for a medical expert to testify as to what treatment a reasonably skilful physician would adopt in a given case.74 And a physician who attends a person that had been in the care of another physician may give an opinion as to what was the first physician's treatment, and testify as to how it differs from his own, and as to its effect upon the patient;75 and such opinions may be based upon hypothetical statements of the facts,76 or upon the facts of the case as testified to by others, upon the assumption that they were true.77 Where there is a conflict of evidence, however, as to the mode of treatment, a medical witness cannot give his opinion upon the treatment as disclosed by the evidence; since that would require him to determine what treatment the evidence disclosed;78 and the question as to whether, taking the facts as the witness understood "Spaulding v. Bliss, 83 Mich. 311, 47 N. W. 210. T2Olmsted V. Gere, 100 Pa. 127; Wright v. Hardy, 22 Wis. 348; Quinn v. Higgins, 63 Wis. 664, 53 Am. Rep. 503, 24 N. W. 482. And physicians who are competent from education and experience to testify as to the propriety of medical treatment are not rendered incompetent by the fact that the action is against a magnetic healer, or one who pretends to possess certain powers of healing peculiar to himself, and the witness does not claim or pretend to know anything about that practice. Longan v. Weltmer (Mo.) 64 L. R. A. 969, 79 S. W. 655. But declarations of another physician made in the plaintiff's presence after the defendant had been discharged from the case, to the effect that the treatment was right and proper, are not admissible in evidence in an action for malpractice; the declarant himself should be called to the stand to prove such statements. Olmsted v. Gere, 100 Pa. 127. T3Ibid. "Challis v. Lake, 71 N. H. 90, 51 Atl. And what would be proper treatment for a simple fracture, and that treatment for a compound fracture would not be materially different, may be shown by the testimony of a physician in an action for malpractice against another physician in which negligent treatment of a compound fracture is alleged. Leisenring v. LaCroix (Neb.) 94 N. W. 1009. And physicians familiar with massage treatment, and methods employed in giving it, and the reasonable requirements upon the part of patients in order to receive it, are competent to testify as ex perts as to whether it is reasonably nec essary in giving massage treatment to a woman to require her to expose her person to the view of the operator, and whether it is customary where the operator is a man. Bartell v. State, 106 Wis. 342, 82 N. W. 142. Barber v. Merriam, 11 Allen, 322. 76Olmsted v. Gere, 100 Pa. 127. "Wright v. Hardy, 22 Wis. 348; Olmsted v. Gere, 100 Pa. 127; Getchell v. Hill, 21 Minn. 464. Bishop v. Spining, 38 Ind. 143. them, he could see any evidence of malpractice, is improper, as calling upon him to determine the very question the jury was impaneled to decide.79 And the measure of a physician's responsibility to his patient is not a subject of professional skill concerning which a professional witness may testify.80 Nor can a physician be called upon as an expert to testify in an action for malpractice as to whether the treatment by the defendant was proper or improper, based upon what he knows about the case; since what he knows about it probably embraces more than he has stated to the jury.81 519. Measure of damages.-Such damages may be allowed in an action for malpractice, as resulted from the injury sustained, and would be appropriate to the nature of the case, as disclosed by the evidence.82 They should be at least compensatory;83 and in determining the amount the jury should take into consideration the pain and suffering, the loss of time caused,85 the probability that the injury was permanent,86 and the expenditure of money necessitated by the injury,87 as well as the condition and circumstances of the injured 84 "Hoener v. Koch, 84 Ill. 408. Mertz v. Detweiler, 8 Watts & S. 376. Burns v. Barenfield, 84 Ind. 43. The general subject of opinion evidence by medical experts is discussed post, Chap. XXVII. 82Stone v. Evans, 32 Minn. 243, 20 N. W. 149; Challis v. Lake, 71 N. H. 90, 51 Atl. 260; Brooke v. Clark, 57 Tex. 105. The measure of damages in an action against a surgeon for malpractice in setting and treating a broken arm is the damage accruing to the plaintiff in excess of that which would have naturally accrued to him from the breaking of his arm had he been treated with a proper degree of care and skill. Miller v. Frey, 49 Neb. 472, 68 N. W. 630. 83 Long v. Morrison, 14 Ind. 597, 77 Am. Dec. 72; Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683. But a charge upon the question of damages in an action for malpractice is erroneous, where it emphasizes the giving of compensation by the use of the words "full, complete, and ample." Sale v. Eichberg, 105 Tenn. 333, 52 L. R. A. 894, 59 S. W. 1020. "Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Lathrope v. Flood, 135 Cal. 458, 57 L. R. A. 215, 63 Pac. 1007, 67 Pac. 683; Smith v. Overby, 30 Ga. 241; McCracken v. Smathers, 122 N. C. 799, 29 S. E. 354. But a physician called to attend an injury, who does so improperly, can only be held liable for any additional pain and suffering which the plaintiff underwent because of his want of care and skill in the treatment of the injury; he cannot be held responsible for the direct results of the original injury. Wenger v. Calder, 78 Ill. 275. Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Tefft v. Wilcox, 6 Kan. 46; McCracken v. Smathers, 122 N. C. 799, 29 S. E. 354. 80 Ibid. "Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323; Tefft v. Wilcox, 6 Kan. 46. This, however, does not include the amount paid to a physician for services, where it does not appear to have been wholly for services to remedy the injury resulting from the defendant's want of skill; but if the amount paid exceeded what would have been necessarily paid if the injury had been properly treated, such excess may be included. Leighton v. Sargent, 31 N. H. 119, 64 Am. Dec. 323. And there can be no recovery for expenses incurred in efforts to cure an injury, in an action for malpractice, unless it be shown that the expenses so incurred were reasonably necessary. Hewitt v. Eisenbart, 36 Neb. 794, 55 N. W. 252. And a husband cannot recover against party.88 And a recovery must embrace prospective as well as accrued damages. 89 Mental suffering, both past and future, as well as bodily pain, is also proper for consideration on the question of due compensation.90 And a husband may recover for the loss of the services of his wife during the continuance of her life.91 And exemplary damages may be recovered in a case of negligence or improper treatment, where indifference to consequences appears. 92 An act, however, which was not grossly reckless or wilful, but merely the result of a want of ordinary care and skill, warrants a recovery for actual damages only;93 and the allowance of damages for mental agony or suffering is restricted to that of the person who received the injury sued for.94 And the measure of damages under a statute giving a right of action for unlawful violence or negligence causing death is the a physician in an action for malpractice causing injury to his wife, for expenses incurred or paid on her account though alleged in his declaration, in the absence of evidence that they were so incurred or paid. Hyatt v. Adams, 16 Mich. 180. Tefft v. Wilcox, 6 Kan. 46; Fowler v. Sargeant, 1 Grant, Cas. 355. Howell v. Goodrich, 69 Ill. 556. 90 Brooke v. Clark, 57 Tex. 105; Smith v. Overby, 30 Ga. 241. Mental suffering naturally attendant and incident to physical pain prolonged by the failure of a physician to discover the seat of a bodily injury is a proper element of damage in an action for malpractice. Manser v. Collins (Kan.) 76 Pac. 851. It has been held, however, that where no malice is shown on the part of a physician, the court will not allow pecuniary compensation for mental suffering resulting from his act, but only the actual damages established. Jeannotte v. Couillard, Rap. Jud. Quebec, 3 B. R. 461. "Stone v. Evans, 32 Minn. 243, 20 N. W. 149; Nixon v. Ludlam, 50 Ill. App. 273. But loss of services would have to be specially pleaded. Stone v. Evans, 32 Minn. 243, 20 N. W. 149. Cochran v. Miller, 13 Iowa, 128; Brooke v. Clark, 57 Tex. 105. In such case the physician would not be exempted from exemplary damages upon a mere showing that he had no bad motive, or that in other matters he had shown due care. Brooke v. Clark, 57 Tex. 105. And an act upon the part of a physi cian expediting death does not constitute a mere technical injury, for which only nominal damages can be given, but is one for which exemplary damages may be imposed. Gray v. Little, 126 N. C. 385, 35 S. E. 611. But the facts warranting the allowance of something more than compensatory damages must be pleaded and proved. Baxter v. Campbell (S. D.) 97 N. W. 386. 93 Hyatt v. Adams, 16 Mich. 180; Barter v. Campbell (S. D.) 97 N. W. 386. But a statutory provision by which a person's representatives cannot recover more than $5,000 for an injury causing his death does not render it necessary that a recovery for malpractice should be less than $5.000, where it caused great personal suffering and permanent disability. Kelsey v. Hay, 84 Ind. 189. "Hyatt v. Adams, 16 Mich. 180. And where action is brought by a husband against a physician for malprac tice causing his wife's death, no damages for mental suffering can be allowed. Ibid. In Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72, however, it was held that, in an action by a husband against a physician for malpractice causing his wife's death, her pain and suffering may be considered, but not that of her parents or her husband. And Stone v. Evans, 32 Minn. 243, 20 N. W. 149, holds that damages suffered by a husband on account of the malprac tice of a physician in attending his wife. for his own mental anxiety and distress growing out of his relationship and sympathy, if recoverable at all, cannot be recovered as an independent item or |