
    Charles Lemon, Appellee, v. George Kessel et al., Appellants.
    1 EVIDENCE: Opinion Evidence — Unallowable Conclusion. A witness, after properly testifying to tbe line of medical treatment employed on a certain occasion, may not testify that such treatment was the usual and ordinary practice of the profession at the time and place in question.
    
    
      2 EVIDENCE: Opinion Evidence — Unallowable Conclusion. Whether the results of a line of medical treatment which was employed on a named occasion were satisfactory is, at the best, an unallowable conclusion.
    3 PHYSICIANS AND SURGEONS: Negligence — Evidence to Rebut. On the issue why a reduced oblique fracture of a bone “slipped,” evidence is admissible tending to show that in such fractures particles of flesh are liable to gather under the ends of the splintered bones and thus cause a slipping.
    4 PHYSICIANS AND SURGEONS: Negligence — Evidence. In an action for malpractice, evidence Which is narrative of the physical condition of the patient at a time and place in controversy is necessarily admissible.
    5 PHYSICIANS AND SURGEONS: Negligence — Usual and Ordinary Treatment — Evidence. Evidence that certain medical treatment was not employed on a patient may very properly be met by evidence that such treatment was not the usual and ordinary method of practice at the time and place in question.
    6 PHYSICIANS AND SURGEONS: Negligence — Joint Action — Evidence. In a joint action against two physicians for malpractice, evidence of negligence on the part of one of the defendants prior to the other defendant’s connection with the ease is inadmissible.
    7 PHYSICIANS AND SURGEONS: Negligence — Undue Shortening of Limb — Evidence. In an action for malpractice wherein it is shown that an injured limb, after treatment, was over three inches shorter than the uninjured limb, held that improperly formed questions tending to show that the ordinary results of such an injury would be a shorten-of one or two inches were properly excluded.
    8 PHYSICIANS AND SURGEONS: Negligence — Pain and Suffering — Rebuttal. In an action for malpractice, evidence of pain and suffering on the part of the patient is, of course, rebuttable.
    9 PHYSICIANS AND SURGEONS: Negligence — Usual and Ordinary Treatment — Competency of Witness. A witness, his competency to testify being established, may testify as to what was the usual and ordinary practice at a named time and place among physicians and surgeons in the treatment of a specified injury.
    10 PHYSICIANS AND SURGEONS: Negligence — New Condition Subsequent to Discharge. If, after the discharge of a patient, new conditions arise which are not the natural result of the previously existing condition of the patient, the physician must have due notification of sueh condition and an opportunity to treat it; and the jury must be so instructed, if an instruction is requested. (See Book of Anno., Vol. 1, See. 11491, Anno. 85 et seq.)
    
    
      11 PHYSICIANS AND SURGEONS: Negligence — Damages—Pain Incident to Injury. No recovery may be bad, in an action for malpraetiee, for pain (1) incident to an injury or (2) incident to tbe usual and ordinary treatment of an injury; and, on request, tbe court must clearly differentiate, in its instructions, between sueb pain and pain caused by the negligence of the physician. (See Book of Anno., Yol. 1, Sec. 11491, Anno. 85 et seq.)
    
    12 TRIAL: Instructions — Hypothetical Questions — Jury Determining Materiality of Facts. An instruction wbieb permits a jury to determine tbe materiality of tbe facts assumed in a hypothetical question, preliminary to determining the value of the opinion expressed in the answer to the question, is prejudicially erroneous. (See Boole of Anno., Yol. 1, See. 11493, Anno. 118 et seq.)
    
    Headnote 1: 22 O. J. p. 680 (Anno.) Headnote 2: 22 C. .T. p. 680 (Anno.) Headnote 3: 30 Cyc. p. 1587 (Anno.) Headnote 4: 30 Cyc. p. 1587 (Anno.) Headnote 5: 30 Cyc. p. 1587 (Anno.) Headnote 6: 30 Cyc. p. 1587 (Anno.) Headnote 7: 30 Cyc. p. 1587 (Anno.) Headnote 8: 30 Cyc. p. 1587 (Anno.) Headnote 9: 30 Cyc. p. 1587 (Anno.) Headnote 10: 30 Cyc. pp. 1580 (Anno.), 1589. Headnote 11: 30 Cyc. pp. 1590, 1591. Headnote 12: 38 Cye. p. 1511.
    Headnote 1: 21 R. C. L. 405. Headnote 11: 21 R. C. L. 408.
    
      Appeal from Howard District Court. — W. J. Springer, Judge.
    June 21, 1926.
    Rehearing Denied September 24, 1926.
    Action for damages for malpractice. From a judgment in favor of plaintiff, on tbe verdict of tbe jury, tbe defendants appeal.
    
    Reversed.
    
      Butcher & Hambreeht, McCoolc & Lyons, and C. W. Reed, for appellants.
    
      J. A. Cutting and William S. Hart, for appellee.
   Albert, J.

On or about August 13, 1918, appellee, wbo was a farmer, was injured by tbe fall of a bay derrick, which resulted in an oblique fracture of tbe femur of bis right leg, an alleged injury to bis knee, and an alleged fracture of tbe neck of tbe femur. Dr. Jinderlee was immediately called, and took charge of the patient. He moved him to the hospital at Cresco. Dr. Kessel, one of the appellants, was the chief surgeon of that hospital. On the succeeding day, the appellants, Kessel and Jinderlee, reduced the fracture of the femur, applied splints thereto, and, by the use of weights attached to the foot, carried out what is designated in the record as the “method by extension and counter-extension.” His limb was later put in a plaster cast. They took an X-ray picture of the femur, did not discover anything wrong with the hip, and for that reason did not X-ray it. Appellants are charged with negligence in this respect, as well as with negligence in failing to discover the condition of his knee. Generally, they are charged with negligence in the care and treatment of the patient with relation to his injury.

Appellee was released from the hospital in a little less than six weeks from the time he was admitted. Later, it developed that the injured leg was approximately three inches shorter than his left leg, and it was about two years thereafter before he could walk without the aid of a crutch or cane; and then only by the assistance of a shoe so constructed as to add an extension to the limb, to meet the length of the other.

This is a sufficient statement of facts, for the present, and any additional facts deemed necessary will be referred to as the opinion progresses.

Sixty-five errors are assigned, urged, and argued in this appeal, 49 of which refer to the admission or rejection of testimony. After laboriously checking up these assignments of error attacking the testimony, we find that 24 of them refer to instances where questions were asked and objections sustained, but the record further shows that the objection was withdrawn, or that the question had been previously or subsequently fully answered, if not in terms, in substance at least. We regret that we are called upon to review such assignments of error. While the ruling on the objection, when made, was probably erroneous, at the same time, when the matter sought to be proven has been previously or is subsequently admitted, the error originally committed is, of course, without prejudice.

Several other errors are based upon the sustaining of objections to questions in which the witness was asked whether or not the line of treatment used by appellants was the usual and ordinary practice of tlie profession m Cresco and similar communities, in 1918. This line of questioning was objected to on the ground that it called for a conclusion, and invaded the province of the jury. We have made a pronouncement on this question, in which we held that this form of question was subject to the objection herein made. The rule in this state, as we turderstaad it to he, is that the witness should testify as to what the usual and ordinary line of treatment is, in similar cases, at the place in controversy and like localities; next, show what line and character of treatment was used, but leave the conclusions or deductions to be made therefrom for the jury. In other 'words, after the witness has shown the line of treatment actually used, and also what the usual, ordinary, and customary line of treatment is in such cases, it is for the jury, and not for the witness, to draw the conclusion. We confess that this is rather narrow, but it is apparently a definite line, and we have so announced the rule in Van Sickle v. Doolittle, 184 Iowa 885, at 888. It is, therefore, obvious that the ruling of the court on these objections was correct.

Under objection, witnesses were not permitted to testify that the result of the line of treatment used by appellants was “satisfactory.” In one instance, where the witness testified that the result was “satisfactory,” that part of the answer was stricken by the court. Both of these rulings were correct, because the matter-stated is wholly a conclusion, and, in fact, is not enlightening. The conception of what is satisfactory rests wholly in the mind of the witness, and gives no light to the jury. The testimony that the result was good or bad is of the same character, and is subject to the same objection.

Testimony was offered by one of the appellants, tending to show that, in a case of oblique fracture, particles of flesh and muscle were likely to obtrude themselves between the fractured ends of the bone, and thus cause a slipping. This evidence was rejected, when it should have been admitted. The evidence shows that the bones did slip, and this proposed evidence may have thrown lierht on the question of why they slipped.

One of the appellants was asked to describe to the jury, in Ms own way, appellee’s condition when he left the hospital, when the witness last saw him, and what happened to the fracture °f the neck °f the femur before that time, at the time the X-ray pictures were taken, Objection was made to tMs, and sustained. It should have been overruled, as there can be no question as to the competency and materiality of this testimony.

Appellee’s expert testified that one of the recogmzed methods of treating such condition as existed in tMs case is what is known as the ‘ ‘ open method. ” To meet tMs, appellants sought to prove that such “open method” was not the usual and ordinary method of practice in Creseo at the time in controversy. Objection was sustained to tMs, when it should have been overruled. Appellee injected the “open method” of treatment into the case, and appellants had the right to show that such treatment was not used in the ordinary practice at the place -in controversy.-

TMs action is brought against appellants jointly. The prayer of the petition and the verdict of the jury both run against them as joint defendants. As heretofore stated, appellant Kessel had notMng to do with the case until . it reached the hospital at Creseo, and, as the claim is -against them jointly, any negligence on the part of Jinderlee prior to that time would not be chargeable to them jointly. With tMs situation, appellee sought to show that there was some negligence in the care of Ms limb after the accident occurred, and before he reached the hospital. An objection to this line of testimony was rightfully sustained, as it was not a material issue in the case, and could not be a basis for a judgment against the appellants jointly.

The evidence shows that appellee’s injured limb was more than three inches shorter than the uninjured one. Appellants sought, by questions, to show that a shortening of one or two inches would be the ordinary result, under such oMeumstamces, but, over objection, were refused this line testimony- The questions asked did not measure up to the facts in the case, and therefore there was no error in sustaimng the objection.

Some of appellee’s witnesses testify that, at various times after being taken to the hospital, appellee made certain complaints of pain and discomfort. Appellants offered testimony to negative this, but were not permitted to introduce it. This was error.

Appellant Jinderlee was asked:

“What was the usual and ordinary practice among physicians and surgeons in Cresco and similar communities, in the treatment of a knee such as you found in the plaintiff at that time?”

This was objected to, and the objection sustained, when it should have been overruled. The question follows the usual and ordinary line of questions in matters of this kind.

Appellants asked the following instruction:

“You are instructed that, if you find from the evidence that, at the time the plaintiff left the hospital, and at the time the defendant Jinderlee removed the lower part of the splint from the plaintiff’s leg, that the plaintiff’s legs were substantially the same length, and there was no substantial deformity therein, and that thereafter the said leg presented an altogether different appearance, and was in an altogether different condition, it is the law that, even though no instructions were given to the patient with respect to calling upon the defendants or notifying them of the conditions, the plaintiff was required to exercise such ordinary prudence in reference to reporting to the doctors as would be expected of a person in his condition, and the failure on his part to exercise such ordinary prudence and care would prevent him from recovering for any damages thereafter caused to him by reason of the failure to treat the plaintiff.”

We do not know whether we exactly comprehend the meaning of this instruction, but think that if, after appellee left the hospital, new conditions arose which were not the natural result of the previous existing conditions,1 in order to hold the doctors for damages for the result of such new conditions due care on the part of appellee required that he notify the physicians of such new conditions, and "that, if he failed to do so, then they would not be liable for the damages caused by such new conditions. As thus construed, the equivalent of this instruction should have been given.

Appellants also asked an instruction stating in substance that, if allowance were to be made for pain and suffering, it was only to apply to the pain -and suffering caused by the negligence or unskillfulness of appellants in their treatment, and that no allowance could be made for pain and suffering incident to the condition of the injuries or incident to the treatment exercised with a reasonable degree of care and skill. This was refused, and the only instruction given was one excluding the pain and suffering sustained by appellee prior to the time appellants treated him. The vice of this given instruction is emphasized by another instruction, in which the jury was told that, in measuring the damages, it might take into consideration pain and suffering. It is a well known fact that an injury such as the appellee suffered is bound to be accompanied by pain and suffering. ■ For such pain and suffering as are incident to the injury, of course no recovery can be had. Therefore, the instructions should have limited the consideration of the question of páin and suffering to that caused by the negligence and unskillfulness of the physicians in charge. Having failed to do so, the instructions viven are erroneous.

Other instructions were asked by appellants, but we feel that they were fairly covered by the instructions given by the court. In the instructions given by the court, Instructions 6 and 7 state that “it is alleged and admitted” that certain conditions existed. Both of these instructions are wrong in this respect, because none of these matters are admitted, but all are specifically denied by appellants.

In Instruction 16 given by the court, the question of the weight of hypothetical questions is considered. This instruction is identical in wording with the instruction set out in Ingwersen v. Carr & Brannon, 180 Iowa 988, at page 1005. We need not copy the same here. The same attack is made on the instruction in the case at bar as was made on the instruction in that case, to wit: that it left to the jury the determination of the material facts involved. We have repeatedly and consistently condemned this type of instruction, and we have no disposition to recede from our rule in that respect. See Hall v. Rankin, 87 Iowa 261; Kirsher v. Kirsher, 120 Iowa 337; Stutsman v. Sharpless, 125 Iowa 335; Ball v. Skinner, 134 Iowa 298; Madden v. Saylor Coal Co., 133 Iowa 699; and Stanley v. Taylor, 160 Iowa 427. The argument of the dissentient in the Ingwersen case does not appeal any more strongly to us now than it did to the court at that time. To say that certain facts must be substantially proven or established does not, to our minds, convey the same meaning as to say that the jury may determine what facts are material. In other words, materiality and substantiality are not synonymous.

Some other errors are assigned and discussed, but we do not deem them of materiality, and we think that they are not likely to arise on a retrial of the case; hence they are given no further attention.

The court erred on the matters hereinbefore set out, as in this opinion explained, and the case is — Reversed.

De Graff, C. J., and EvaNS and Morling, JJ., concur.  