Beahm v. Shortall

• Decision Date: 07 February 1977
• Docket Number: No. 50,50
• Citation: 279 Md. 321,368 A.2d 1005
• Parties: Eugene L. BEAHM et al. v. Francis E. SHORTALL, Jr., et al.
• Court: Maryland Court of Appeals

Page 321

279 Md. 321

368 A.2d 1005

Eugene L. BEAHM et al. v. Francis E. SHORTALL, Jr., et al.

No. 50.

Court of Appeals of Maryland.

Feb. 7, 1977.

James P. Salmon, Upper Marlboro (Charles E. Channing, Jr. and Sasscer, Clagett, Channing & Bucher, Upper Marlboro, and Samuel S. Smalkin and Rollins, Smalkin, Weston, Richards & Mackie, Baltimore, or the brief), for appellants.

William A. Hegarty, Towson, and John O. Herrmann, Baltimore, for Francis E. Shortall, Jr., and Martha M. Shortall.

Roger J. Bennett, Baltimore, for Owen Ray Payton.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ORTH, Judge.

This appeal requires that we look again at the rule followed in this jurisdiction concerning the admissibility of the testimony of a physician employed to examine a person, not for the purpose of treatment, but in order to qualify as an expert witness during litigation.

I

We have made a distinction between a treating physician and a nontreating physician. Our latest word on the matter appears in Candella v. Subsequent Injury Fund, 277 Md. 120, 353 A.2d 263 (1976), in which we summarized the law:

'We have applied in this State the universally recognized principle that an attending physician may testify as to the medical history ¹ related to him by his patient, ² and may also state his conclusions reached on the strength of that history. . . . Such testimony is admitted under an exception to the hearsay rule, the underlying rationale being that the patient's statements to his doctor are apt to be sincere when made with an awareness that the quality and success of the treatment may largely depend on the accuracy of the information provided the physician.

'In Maryland, however, we have not extended this principle to include the case in which the patient's history has been related to a nontreating physician, . . .; in these instances, the trustworthiness which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony on his behalf rather than for purposes of diagnosis and treatment.' 227 Md. at 123-124, 353 A.2d at 265.

The principle with respect to the testimony of an attending physician was set out in Yellow Cab v. Henderson, 183 Md. 546, 552-553, 39 A.2d 546 (1944). ³ The question of the admissibility of the testimony of a nontreating physician, left open in Yellow Cab, was decided in Parker v. State, 189 Md. 244, 249, 55 A.2d 784 (1947), which declared it to be inadmissible. That rule has been consistently recognized from Parker to Candella. Francies v. Debaugh, 194 Md. 448, 457, 71 A.2d 455 (1950); Adams v. Benson, 208 Md. 261, 269, 117 A.2d 881, 884 (1955), the court noting: '(The Parker) decision has never been overruled'; Wolfinger v. Frey, 223 Md. 184, 190, 162 A.2d 745 (1960); Connor v. State, 225 Md. 543, 557, 171 A.2d 699, cert. denied, 368 U.S. 906, 82 S.Ct. 186, 7 L.Ed.2d 100 (1961); Penn Fruit, Inc. v. Clark, 256 Md. 135, 140-141, 259 A.2d 512 (1969). See Hodge v. Duley, 22 Md.App. 392, 394, 323 A.2d 607, cert. denied, 272 Md. 743 (1974).

We have been aware of the criticism aimed at the restrictive rule of Parker. Candella v. Subsequent Injury Fund, supra, 277 Md. at 124, 353 A.2d 263. We have noticed that courts in other jurisdictions have taken a more liberal view. In Adams v. Benson, supra, 208 Md. at 267, 117 A.2d at 883, after observing that '(t)he 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 under the exception to the hearsay rule for statements of bodily condition', we said:

'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.'

But there was no need for us to express a preference between that view and the rule of Parker because we found, in the circumstances there, that although the testimony was erroneously admitted under the Parker rule, the error was harmless. Adams v. Benson, supra, 208 Md. at 269-270, 117 A.2d 881. Cases decided subsequent to Adams, involving application of the Parker rule, were decided without mention of the less restrictive view noticed in Adams. Wolfinger v. Frey, supra, 223 Md. at 190, 162 A.2d 745; Connor v. State, supra, 225 Md. at 556-557, 171 A.2d 699; Wilhelm v. State Traffic Comm., 230 Md. 91, 97, 185 A.2d 715 (1962); Rossello v. Friedel, 243 Md. 234, 241-242, 220 A.2d 537 (1966); Penn Fruit, Inc. v. Clark, supra, 256 Md. at 140-141, 259 A.2d 512. It was in Candella v. Subsequent Injury Fund, supra, that we next made express comment with respect to the view contrary to Parker:

'We recognize that a number of states ⁴ make a distinction which permits the nontreating physician to present his conclusions and the information, including the history received from the patient, upon which he has relied for those conclusions. In those states, the history is not admitted as substantive evidence, but merely for the nonhearsay purpose of explaining the conclusions reached by the physician.' 277 Md. at 124, 353 A.2d at 266.

Because the circumstances of Candella were not appropriate for a determination of whether to adopt the less restrictive rule as to the testimony of a nontreating physician, we adhered to the rule of Parker in deciding that case. The case sub judice, however, places squarely before us whether we shall continue to adhere to the rule of Parker. We have decided that we shall not.

We hold that a physician, who examines a patient, not for the purpose of treatment, but in order to qualify as an expert witness, may present his medical conclusions and the information, including the history and subjective symptoms, received from the patient which provide the basis for the conclusions. The conclusions are admissible as substantive evidence. The statements made by the patient, as narrated by the physician, are admissible, with a qualifying charge to the jury, only as an explanation of the basis of the physician's conclusions and not as proof of the truth of those statements. ⁵

II

Francis E. Shortall, Jr., incurred injuries to his person and damage to his property in a collision between a car driven by him and a tractor driven by Eugene L. Beahm during the course of Beahm's employment by Atlantic Furniture Products Co., Inc. (Atlantic). Mr. Shortall and his wife, Martha M. Shortall, instituted an ex delicto action in the Superior Court of Baltimore City against Beahm, Atlantic and others. A jury rendered verdicts against Beahm and Atlantic. It recompensed Mr. Shortall in the amount of $450,000 and awarded him and his wife $50,000 for loss of consortium. Beahm and Atlantic appealed from the judgments to the Court of Special Appeals. We granted certiorari before decision by that court.

Almost four years after the accident, Beahm and Atlantic employed Dr. G. Lee Russo, a specialist in neurosurgery, certified by the American Board of Neurological Surgeons, to examine Mr. Shortall, not for the purpose of treatment, but to qualify the physician to testify as an expert during the pending litigation with respect to Mr. Shortall's injuries. Dr. Russo testified at the trial at the behest of the Shortalls. His medical conclusions as to the nature and extent of Mr. Shortall's injuries and the subjective symptoms related by Mr. Shortall which served as the basis for the medical conclusions were received in evidence. Beahm and Atlantic claim that the admission of this evidence was erroneous. ⁶

It is apparent that the narration by Dr. Russo of the subjective symptoms related to him by Mr. Shortall was received as substantive evidence. There was no qualifying instruction with respect thereto. It is also clear that the conclusions of Dr. Russo were reached upon consideration of the subjective symptoms and complaints as to pain related by Mr. Shortall to him and not upon any objective symptoms revealed by the examination. The complaints of Mr. Shortall, which Dr. Russo considered as disabling, were pain behind the left eye or headaches and double vision. Without these subjective symptoms, Dr. Russo said, there would be no disability despite the objective symptom of some numbness in the face.

Under the rule of Parker, both the medical conclusions reached by Dr. Russo and his testimony as to the subjective symptoms serving as the basis for the conclusions would have been inadmissible. Under the rule we now adopt, the conclusions would be properly admissible as substantive evidence and testimony as to the subjective symptoms would be admissible for the limited purpose of showing that Mr. Shortall made them and that they were utilized by the physician to reach his conclusions. Because the testimony concerning the subjective symptoms was in fact admitted without an appropriate explanatory instruction, it was before the jury as substantive evidence, and, therefore, its admission was erroneous. ⁷

The Shortalls urge that even if the testimony were admitted in error, reversal would not be compelled because of '(1) the appellants' waiver by failure to object or to move to strike and (2) the nonprejudicial nature of such error.'

(1)

We find, in the circumstances, that objection to Dr. Russo's testimony was before the court. The transcript of the proceedings reflects that throughout the...