¶1(dissenting): This was not a trial on the merits. On the trial plaintiff may not be able to prove what the petition alleges. That, however, is not the issue now. The only question before us now is whether plaintiff has a cause of action, assuming he can prove what he has alleged. For the purpose of the demurrer defendants admitted as true every fact properly pleaded.
¶2It is, of course, elementary that a physician or surgeon ordinarily is not liable in damages for an honest error in mistake in judgment. *528That fact, however, does not relieve him from the duty of exercising reasonable care and skill in making a diagnosis which must form the basis of his judgment. (Manser v. Collins; 69 Kan. 290, 76 Pac. 851; James v. Grigsby, 114 Kan. 627, 632, 220 Pac. 267; Riggs v. Gouldner, 150 Kan. 727, 728, 96 P. 2d 694; Dishman v. Northern Pac. Ben. Ass’n, 96 Wash. 182, 164 Pac. 943; 21 R. C. L., § 33, pp. 387, 388; 48 C. J., §§ 113, 114, pp. 1125-1128.) For the purpose of the demurrer it was admitted the patient did not have cancer and that the diagnosis was negligently and carelessly made. The demurrer also admits the doctor did more than merely make a diagnosis. It expressly admits he also advised his patient what she should do about it. That advice was that she should have her breast removed. It admits that in obedience to his advice she had it removed when the tissue in fact was not cancerous. Some of the items of expense for which recovery is sought are expenses incurred in getting done exactly what her doctor advised her to have done. I therefore have difficulty in saying as a matter of law that her doctor’s diagnosis, combined with his advice as to what she should do about it, were not the proximate or legal cause of some expenses incurred.
¶3I further find myself unable to say as a matter of law that her doctor could not reasonably anticipate she would follow his advice. To say he could not reasonably anticipate she would follow his advice is tantamount to saying that a patient would not and should not have confidence in the advice of the physician of her own choosing.
¶4The demurrer also admits it was imperative that the operation be performed by the Mayo clinic at once and without the delay which would be occasioned by an independent diagnosis by the Mayo clinic. That statement is somewhat difficult for me to believe, but it is not my province to believe or disbelieve it. That is the proper province of a jury and not of the courts. For the purpose of the demurrer, the truth of the statment is now admitted.
¶5In view of the various admissions on demurrer, whose province is it to determine the proximate cause of the damages claimed? In Durst v. Wareham, 132 Kan. 785, 297 Pac. 675, we held:
“The question of whether a negligent act is the proximate cause of an injury and whether an ordinary, reasonable, prudent man would have foreseen that' injury might occur as a result of a negligent act is a question of fact for the jury.” (Syl. ¶ 4.)
¶6*529(See, also, Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 52, 53 P. 2d 923; Jones v. McCullough, 148 Kan. 561, 566, 83 P. 2d 669; Campbell v. Weathers, 153 Kan. 316, 111 P. 2d 72.) So, too, the question of proximate cause is held to be a jury question where an intervening efficient cause is involved unless courts can say as a matter of law that minds could not reasonably reach different conclusions touching the subject of proximate cause. (22 R. C. L., Proximate Cause, §§ 31, 32; Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105; Filson v. Express Co., 84 Kan. 614, 618, 114 Pac. 863; Clark v. Powder Co., 94 Kan. 268, 276-278, 146 Pac. 320.)
¶7Defendants argue if anyone is liable in the instant case it is the Mayo clinic, which was employed to perform the operation. We are concerned with the liability of parties defendant in the instant case and not with the liability of the Mayo clinic. Assuming, without deciding, that the Mayo clinic was also negligent, how could that fact relieve defendants from liability. In Berry v. Shell Petroleum Co., 141 Kan. 6, 40 P. 2d 359, it was said:
“On the subject of legal consequences of misconduct, the general rule is stated in Harper on Torts (sec. 119, p. 270), as follows: ‘The rule may be generalized, that where harmful consequences are brought' about by intervening and independent forces the operation of which might have been reasonably foreseen, there, will be no break in the chain of causation of such a character as to relieve the actor from liability. The source of the intervening agency is immaterial, whether from nature, animate or inanimate, or from human beings.’ (Citing Meecke v. Morguies, 128 Kan. 423.)” (p. 7.)
¶8See, also, Restatement, Torts, § 439; Tilden v. Ash, 145 Kan. 909, 916-918, 67 P. 2d 614.
¶9I think the trial court properly overruled the demurrers to the petition.