Adams v. Benson

• Decision Date: 11 November 1955
• Docket Number: No. 5,5
• Citation: 117 A.2d 881,208 Md. 261
• Parties: Irvin ADAMS and William D. Adams, Individually and as copartners trading as Adams Inn and also trading as Adams Cocktail Lounge, v. Ida BENSON.
• Court: Maryland Court of Appeals

Page 261

208 Md. 261

117 A.2d 881

Irvin ADAMS and William D. Adams, Individually and as

copartners trading as Adams Inn and also trading

as Adams Cocktail Lounge, v. Ida BENSON.

No. 5.

Court of Appeals of Maryland.

Nov. 11, 1955.

Wilbur D. Preston, Jr., Baltimore, (Due, Nickerson, Whiteford & Taylor, Baltimore, and John Grason Turnbull, Towson, on the brief), for appellants.

W. Lee Harrison, Towson, and Amos I. Meyers, Baltimore (Douglas G. Bottom, Towson, and Richard C. Murray, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This action in tort was instituted in the Circuit Court for Baltimore County by Ida Benson against Irvin Adams and William D. Adams, proprietors of Adams Inn, a tavern at Turner Station, to recover for personal injuries sustained when her right hand was lacerated by an unguarded electric intake fan in the tavern.

The accident occurred on May 18, 1952, near midnight. Plaintiff, who was 25 years old, had just walked through the hall from the cocktail lounge to the door of the ladies' room and was about to enter the room, when the door was opened by a patron coming out. As she jumped back to avoid being hit by the door, her hand was struck and lacerated by the unguarded fan on the wall to the right of the door. She was taken to a hospital, where the lacerations were cleaned and sutured.

Two days later plaintiff, her hand swollen and painful, consulted her physician, Dr. William Wade. She testified that for a month after the accident she visited Dr. Wade twice a day, and for a month thereafter she visited him several times a week. At the trial of the case over two years later she testified about her suffering as follows:

'During those two months that I was going to Dr. Wade, my hand was giving me plenty of trouble. I had terrible pains all the time, and for about a month and a half my hand was still infected. He had to open those cuts up every time I would go to him, and he would wash them out. At night the pains would wake me up in my sleep, and I would cry, and get up and walk. They continued for two months after my hand was cut. * * * My hand is awfully sensitive and weak. I can't grip things very long and I can't make a tight grip. I have continuous pains. Sometimes they are throbbing and sometimes they are sharp pains.'

Dr. Wade was summoned as a witness but he did not appear. However, Dr. Eugene S. Bereston, of Baltimore, a practicing physician specializing in dermatology, testified for plaintiff. Dr. Bereston had examined her hand at three different times, in December, 1952, November 1953, and February, 1954. He testified that he found disfiguring keloidal scars on the dorsum of her right hand, which gave her pain whenever she flexed her wrist. He explained that some people, especially those, like plaintiff, of the Negro race, after the healing of an injury are left with raised keloidal scars, which remain very tender and sensitive and never disappear.

Following instructions by the trial judge as to the law of negligence and the measure of damages, the jury rendered a verdict in favor of plaintiff for $7,500. Defendants appealed here from the judgment entered upon that verdict.

I.

The main contention of defendants was that the judge erred in permitting Dr. Bereston (1) to testify to plaintiff's statement that she suffered pain when she flexed her wrist, and (2) to express his opinion as to the extent of her disability. It was stressed that Dr. Bereston did not make the first examination until more than seven months after the accident, by which time the lacerations had healed, and that he never gave her any treatment. It was then argued that, since Dr. Bereston had examined her hand solely in order to testify, the statement that she had pain in her hand was not admissible under the exception to the hearsay rule for statements of bodily condition. Defendants also objected to Dr. Bereston's opinion, since it was based in part upon the statement objected to.

It was stated by this Court in the opinion delivered by Judge Pearce in 1902 in the case of Sellman v. Wheeler, 95 Md. 751, 54 A. 512, 514, that an attending physician may testify not only to facts observed about the condition of an injured patient but also to statements made by the patient about his symptoms and feelings during examinations made with a view to treatment. This is in accord with the general rule in this country. It is recognized that when a physician examines a patient in order to diagnose an injury and prescribe treatment, his professional opinions must ordinarily be based in part upon the patient's statements.

However, many of the courts in the United States have drawn a distinction, in so far as the admissibility of evidence is concerned, between physicians consulted for treatment and doctors employed solely for the purpose of qualifying as witnesses. The majority of the American courts have held that descriptive statements of present pain or symptoms made to a doctor employed only to testify do not qualify for admission as substantive evidence under the exception to the hearsay rule for statements of bodily condition. Chesapeake & Ohio Ry. Co. v. Wiley, 134 Ky. 461, 121 S.W. 402; Preveden v. Metropolitan Life Insurance Co., 200 Minn. 523, 274 N.W. 685; Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275, 281; United States v. Nickle, 8 Cir., 60 F.2d 372; Nashville, Chattanooga & St. Louis Ry. Co. v. York, 6 Cir., 127 F.2d 606, 611; 6 Wigmore on Evidence, 3d Ed., sec. 1721.

On the other hand, some courts have adopted the rule that expert witnesses may testify to the information upon which they have relied in reaching their conclusions, and this practice permits a medical doctor to give a general account not only of the facts observed but also of the history of the case, including the patient's statements as to injury, past symptoms, and present feelings at the time of the examination. These courts have explained that the patient's statements, when presented for this purpose, are considered, not as evidence of the matters stated, and hence not hearsay, but merely as the grounds and reasons for the opinion to be given in evidence by the witness. Cronin v. Fitchburg & Leominster Street Ry. Co., 181 Mass. 202, 63 N.E. 335; Groat v. Walkup Drayage & Warehouse Co., 14 Cal.App.2d 350, 58 P.2d 200; Estes v. Babcock, 119 Wash. 270, 205 P. 12; Kraettli v. North Coast Transportation Co., 166 Wash. 186, 6 P.2d 609, 80 A.L.R. 1520; Kansas City, Ft. Scott & Memphis R. Co. v. Stoner, 8 Cir., 51 F. 649.

While many of the courts, in accepting the history of a case as the basis for an expert opinion, make no distinction between an attending physician and a doctor who examined the patient only for the purpose of preparing to testify as an expert, there are other courts which have held that such an expert may not recount what the patient has told him, even for the non-hearsay purpose of explaining the grounds of the opinion. It has been pointed out by these courts that when a patient is attended by a physician for the purpose of treatment, there is a strong inducement for the patient to speak truly of his sufferings, but that it may be otherwise when he is examined for the purpose of creating evidence in his own behalf. Davidson v. Cornell, 132 N.Y. 228, 30 N.E. 573, 576. See 3 Wigmore on Evidence, 3d Ed., sec. 688; McCormick on Evidence, sec. 267.

The question came before this Court in 1944 in Yellow Cab Co. v. Henderson, 183 Md. 546, 39 A.2d 546, 175 A.L.R. 267. In that case, where a three-year-old child was injured, the Court recognized that there was a difference of opinion in this country on whether the opinion of a doctor as to the condition of an injured litigant, based wholly or in part upon the history of the case, as told by the litigant on a personal examination, is admissible where the examination was made solely for the purpose of qualifying the doctor to testify as a medical expert. But Judge Bailey, speaking for the Court, made it plain that the doctor in that case was the little child's attending physician, and therefore his opinion that the child's physical condition was the result of injury and shock occasioned by a collision was admissible, even though his opinion was based in part upon information received from the child's mother, who was the nurse.

The question again arose in 1947 in Parker v. State, 189 Md. 244, 55 A.2d 784. In that case the appellant was charged with bastardy. On the day of the trial the appellant was given a sterilization examination by a doctor. At that time the doctor obtained the full case history from the appellant. The Circuit Court for Wicomico County excluded the doctor's opinion based upon the case history. The Court of Appeals, in the opinion by Judge Markell, held that this part of the...