Breeding v. Dodson Trailer Repair, Inc.

• Decision Date: 20 November 1984
• Docket Number: No. 65739,65739
• Citation: 679 S.W.2d 281
• Parties: Bobbie Gene BREEDING, Plaintiff-Respondent, v. DODSON TRAILER REPAIR, INC., and Time D.C., Inc., Defendants-Appellants.
• Court: Missouri Supreme Court

Page 281

679 S.W.2d 281

Bobbie Gene BREEDING, Plaintiff-Respondent, v. DODSON TRAILER REPAIR, INC., and Time D.C., Inc. Defendants-Appellants.

No. 65739.

Supreme Court of Missouri En Banc.

Nov. 20, 1984.

Eugene K. Buckley, St. Louis, for Dodson Trailer Repair.

Ralph K. Soebbing, St. Louis, for Time, D.C., Inc.

Donald L. Schlapprizzi, St. Louis, for plaintiff-respondent.

GUNN, Judge.

Plaintiff-respondent Bobbie Gene Breeding obtained a money judgment in an action for damages against defendants-appellants TIME, D.C., Inc. (TIME) and Dodson Trailer Repair, Inc. (Dodson) for personal injuries sustained in a vehicular rear-end collision. The Eastern District of the Missouri Court of Appeals reversed and remanded. The matter is now before this Court as on original appeal by virtue of our granting plaintiff's motion to transfer. Rule 83.09. ¹

The following points of appeal have been raised by defendants TIME and Dodson: 1) alleged error in the admission of the hospital emergency room record concerning plaintiff's past medical history; 2) alleged error in allowing testimony of a physician regarding the possibility and cost of future surgery; and 3) excessive jury verdict.

Defendant TIME also contends error: 1) by admission of the deposition of plaintiff's physician which was taken prior to TIME's being a party to the lawsuit; and 2) in the giving of an instruction hypothesizing negligence per se on a city brake ordinance violation.

We affirm the judgment of the trial court.

Plaintiff, a self-employed tow truck operator, was towing an automobile when the accident occurred. He had stopped for a signal light at a St. Louis street intersection when he was struck from behind by a truck owned by defendant TIME and driven by an employee of defendant Dodson. The impact caused plaintiff's head and neck to strike the passenger compartment of his truck. His right hand, which had been braced on the steering wheel, was injured.

Plaintiff did not seek immediate medical attention, but two days after the accident he went to a hospital emergency room for treatment, complaining of pain in wrist, arm and back. Following examination and x-rays, plaintiff was released and advised to consult with his own physician if pain persisted. Continued discomfort resulted in plaintiff's seeking further medical treatment by a physician for about a two year period. Six months after the accident he also sought the advice of Dr. William F. Luebbert, an orthopedic surgeon. Dr. Luebbert diagnosed plaintiff's ailment as cervical arthrosis with right brachial ridiculitis. Testifying by depositional means, Dr. Luebbert related that plaintiff's pain and condition would continue indefinitely and if not stabilized through conservative treatment would require surgery. Over defendant Dodson's objection Dr. Luebbert then testified regarding the costs of such surgery.

The defendants' first point of alleged error is that Dr. Luebbert's testimony concerning possible surgery and its attendant costs was speculative and, thus, inadmissible. The testimony was as follows:

Q. Do you feel in your medical opinion that Mr. Breeding will be in the need of future treatment?

A. [Dr. Luebbert] I do.

Q. And what form would that take, Doctor? Of what form would that be?

A. I feel that he will need continued conservative treatment as we've given him in the past. I feel that if this is successful that that is all that he will need. If he progresses to the point that the conservative treatment does not control him he will need surgery on his neck.

Immediately thereafter Dr. Luebbert, over objection, was permitted to testify that the cost of any such surgery would be $1,000 to $1,500, with an additional $3,000 to $4,000 for hospital expense and $300 to $400 for the follow-up care.

The plaintiff testified that while not anxious to undergo surgery, he would submit to it if necessary to reduce the hardship of pain.

The gravamen of defendants' complaint is that future surgery and attendant expenses were contingent upon the failure of conservative treatment. Hence, they argue, that surgery was no more than a mere possibility, and under Hahn v. McDowell, 349 S.W.2d 479 (Mo.App.1961), such testimony was incompetent as not being a future consequence with "reasonable certainty".

Hahn, however, is readily distinguishable from the circumstances of this case. In Hahn the medical testimony concerned the possible development of cancer in an area of a burn scar which had resulted from injuries sustained in an automobile accident. The disfigurement was described as nothing more spectacular than a typical scar from second and third degree burns. The testimony concerning the development of cancer hypothesized on the possibility of a new disability, unrelated to the existing ailment suffered by the plaintiff.

That is not the circumstance of this case. Rather, the situation here is more closely akin to the facts in Stephens v. Guffey, 409 S.W.2d 62 (Mo.1966), in which the physician was allowed to present his opinion as to the estimated cost of low back surgery which could be employed to correct a condition from which the plaintiff was thought to have been suffering. The medical expert testified that "although he was thinking in terms of low back or disc surgery he had not yet recommended surgery, and that he would wait awhile yet." 409 S.W.2d at 69-70. Such testimony was held to be admissible.

In this case, Dr. Luebbert's suggestion of surgery appears to be a legitimate medical alternative to the conservative treatment that the plaintiff was receiving. Its admissibility is even more compelling than the testimony referred to in Stephens v. Guffey, particularly in light of plaintiff's expressed desire to forestall suggested surgical procedures. It is evident that Dr. Luebbert's testimony does not reach the arena of conjecture and speculation condemned in Hahn. Inasmuch as the jury was entitled to consider the possible need for surgery, the estimated cost was also appropriate for its consideration.

Defendants' next contention of error concerns the admission of a portion of a hospital record containing a statement of past history on the cause of plaintiff's injury. The portion of the hospital record about which defendants complain reads:

... was involved in a truck accident while driving on the job on 21, April. Was driving towtruck; struck from behind by tractor-trailer. Jammed wrist against steering wheel. Developed immediate pain in wrist and swelling. Low back pain developed by next morning. Pain worse yesterday and today ... than day of accident.

Defendants acknowledge that the hospital record is admissible within the business records exception to the hearsay rule. But, they argue that the specific statement is inadmissible hearsay as being past history since the plaintiff related events that occurred prior to the time he appeared as a patient. Support for defendants' position that recitations of medical history are subject to exclusion is found in Holmes v. Terminal R.R. Association of St. Louis, 363 Mo. 1178, 257 S.W.2d 922 (1953). Holmes holds that:

[a] physician, in stating his expert opinion on a patient's condition, may testify to what he personally observed and also to what the patient said (an exception to the hearsay rule) concerning his present, existing symptoms and complaints. However, he may not base his opinion upon or testify to statements of the patient with respect to past physical conditions, circumstances surrounding the injury, or the manner in which the injury was received.

Id. 257 S.W.2d at 926.

Although statements of past physical condition are deemed hearsay by Holmes, the trial and reviewing courts may give consideration to the prejudicial effect of such hearsay and find that its admission is not prejudicially erroneous. Hunter v. St. Louis Southwestern Railway Co., 315 S.W.2d 689 (Mo.1958); Annin v. Bi-State Development Agency, 657 S.W.2d 382 (Mo.App.1983).

The fact that plaintiff related to the doctor that he had been in a collision and struck his wrist against the steering wheel can scarcely be considered prejudicial to defendants' case. After all, there was no controversy that a collision had occurred, and no details of the collision were related in the medical record. Annin v. Bi-State Development Agency, 657 S.W.2d at 386. Further, it would be only natural for a physician to consider the circumstance of the accident in arriving at a diagnosis. "Certainly, some inquiry as to the cause of an injury is proper and necessary for intelligent treatment of a patient." Hook v. St. Louis Public Service Co., 296 S.W.2d 123, 128 (Mo.App.1956). Also, the plaintiff already had testified to the items of hearsay. See Hunter v. St. Louis Southwestern Railway Co., 315 S.W.2d at 696.

The foregoing discussion leads to the query as to the need for preservation of a rule restricting inquiry into a patient's past history, particularly as it pertains to diagnostic efforts. It was with some considerable ease that the rule was skirted here by transforming illicit hearsay to licit by reference to two well reasoned cases--Hunter and Annin.

In this case the plaintiff's declarations were made to hospital personnel and enscribed on hospital records for the purpose of prescribing proper medical treatment for injuries incurred in an accident. As recognized in Holmes, statements of present symptoms and conditions are freely admitted. It does, therefore, seem substantially incongruous that a statement by a patient to his doctor that his arm hurts is admissible but reference to how long the injury has prevailed or what accident may have caused the injury is inadmissible hearsay.

A growing number of jurisdictions and distinguished authorities recognize the principle that statements made to a physician, or contained in hospital records, even if characterized as medical history, are admissible insofar as such statements are reasonably pertinent to diagnosis and...