In consonance with the decision in _Grattan v. Metropolitan Life Insurance Company_,[434] it has been held that a physician who amputated a patient’s leg could not testify as to its condition at the time it was amputated.[435] The fact that the physician does not prescribe does not defeat the privilege; if the information is acquired in the course of professional employment the statute operates, for the decision that neither advice nor medicine is needed is a professional act within the spirit of the law.[436] _Medicus optimus, medicamentum minimum_, is the maxim used in another case to illustrate this point.[437] But it cannot be predicated as matter of law that a physician cannot exclude from his consideration facts learned or opinions formed while attending as physician; therefore he can testify as to his opinion on hypothetical facts which might be deemed to relate to another person as well as the patient; and where the physician testified that he could so form an opinion, his opinion of such assumptions was held to be admissible in evidence as expert testimony.[438] But it is not all information which will be presumed to have been necessary to enable the physician to act; it seems that where the knowledge is such that it is evidently immaterial to the physician’s decision, it will be admitted. Such a case is that of _Hoyt v. Hoyt_,[439] where the testimony of physicians was admitted to show the attitude of their patient toward his daughter and their advice to him concerning her, the evidence being for the purpose of showing the testator’s opinion and not the physicians’. It has also been held that a statement made by a patient on the physician’s last visit as to what occurred at the time the patient was injured, tending to show contributory negligence, was not necessary information.[440] And a physician’s evidence of the declaration of his patient as to making a will and the doctor’s advice on that subject have been admitted.[441] THE PROVINCE OF THE COURT IN DEALING WITH THE PRIVILEGE. All questions of the competency of evidence are solved by the Court and not by the jury.[442] The facts establishing the privilege are presented to the Court for its consideration. In Iowa it has been held that a fair trial demands that it should not be made to appear to the jury in an action that the patient is reluctant to waive his privilege, and that therefore the subject-matter of waiver has no place in the taking of testimony except when introduced by the party permitted to make it, and the Court should not allow the patient to be asked to answer under oath whether he is willing to waive his privilege.[443]