The opinion
TYLER, P. J., Dissenting.
I dissent.
The pivotal question presented by the appeal is whether defendant’s treatment of the child came up to the standard exercised by the average physician of ordinary skill in the locality. It is appellant’s contention that the judgment lacks evidentiary support for the reason it was not established that the treatment of the fracture by Dr. Weeks did not satisfy the standards of care exercised by the average physician and surgeon of ordinary skill in the locality, or that Dr. Weeks did not exercise his best judgment in adopting an improvement method of treatment. As pointed out in *44 the main opinion it is not claimed that appellant did not possess the required skill and learning, the sole contention being that he was negligent in the application of his skill in the treatment of the injury.
Appellant, as the record shows, has a very high professional standing. He is clinical professor of surgery at the University of California and he has received the distinguished service medal for good surgery work during the World War. There is evidence to show that after the little child broke her arm she was hurried to a sanitarium about a mile away. Dr. Weeks had been visiting a patient at that institution and was just departing when the child arrived with "her parents. He was asked by the attending physician at the sanitarium to render first aid or emergency treatment. This he agreed to do as an act of humanity. He set and bandaged the arm. His services began and ended with this act. He notified the mother of the danger of swelling and instructed her to notify her own doctor at once. This she did. The doctor, the next day, examined the arm and bandages but did not disturb or change the same.
All of the medical experts, five in number, in addition to appellant, testified that the treatment was proper. To prove the alleged negligence, plaintiff presented but one medical expert, a Dr. Gardner. He had never attended the child professionally but had examined her on one occasion some twenty months after the accident. His testimony was based upon hypothetical questions and an examination of the X-rays or radiographs which were taken of the injured arm the morning after the accident. His testimony was to the effect that the flexed position revealed by the radiographs was improper, and the bandaging too tight. The testimony of plaintiff’s expert does not, in my opinion, establish that the treatment of the fracture did not satisfy the standard of care exercised by the average physician or surgeon of ordinary skill, nor does it show that defendant did not exercise his best judgment in adopting an improved method of treatment, nor does it establish any negligence proximately causing the injury complained of. The fact that this expert might have approved or adopted other methods does not show negligence or want of skill. Appellant was called upon to exercise his best judgment as to the method to be adopted in bandaging the arm so that the broken bones would not become displaced. *45 In my opinion there is no evidence to show that he did not use ordinary care in his treatment of the child. The most that plaintiff’s single expert witness shows is that his judgment differed from that of appellant in the treatment of the fracture, and that he would have pursued a different method. That he might have used a different method is of no consequence. The controlling-question is whether the defendant’s treatment of the child satisfied the standards of care exercised by the ordinary surgeon in the community. The testimony, in my opinion, shows without conflict that it did, and this being so, the case falls within the rule laid down in Hesler v. California Hospital Co., 178 Cal. 764 [ 174 Pac. 654 ], and Markart v. Zeimer, 67 Cal. App. 363 [ 227 Pac. 683 ].
It is my opinion that the judgment lacks evidentiary support and for that reason should be reversed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 15, 1935, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on July 12, 1935.