Gambrell v. Burleson, 18858

Citation165 S.E.2d 622,252 S.C. 98
Decision Date15 January 1969
Docket NumberNo. 18858,18858
CourtUnited States State Supreme Court of South Carolina
PartiesEtrulia B. GAMBRELL, as Administratrix of the Estate of Lester Edwin Gambrell, Respondent, v. James B. BURLESON and Miriam S. Burleson, Appellants.

J. Calhoun Pruitt, Anderson, J. D. Todd, Jr., Greenville, for appellants.

Watkins, Vandiver, Kirven, Long & Gable, Anderson, for respondent.

LITTLEJOHN, Justice.

This is an action seeking damages under the survival act for pain, suffering, medical expense, etc. alleged to have been sustained by Lester Gambrell prior to his death as the result of an automobile collision. Defendant James Burleson drove an automobile owned by his wife, defendant Miriam Burleson, into the rear and right side of Gambrell's parked automobile in which he was sitting at the time. The collision occurred on July 23, 1963, and Mr. Gambrell died of cancer on May 19, 1964.

The defendant in their answer admit the collision but deny all allegations of negligence and damage.

On the trial of the case the plaintiff contended (and it is now uncontested) that at the time of the collision Gambrell had a dormant cancer of the nasopharynx, that the cancer was aggravated or accelerated by the collision and that consequently the defendant was liable for damages resulting from such acceleration. The contention is that the trauma associated with the collision caused cells on what was then a localized tumor to break off and spread over the body by means of the blood or lymph system thereby hastening Gambrell's death and causing pain and suffering and medical expense incident thereto.

The plaintiff presented two medical experts to testify relative to the relation between the collision and the development of Gambrell's complications.

Dr. Thomas Nation, a pathologist, testified: 'I believe it is possible that trauma involving the neck or head could have initiated, or caused metastasis, or spread a malignant tumor.' Dr. Frank Wrenn, a neurosurgeon, testified that 'there is a reasonable probability that the spread could have occurred as a result of the trauma.'

Defense counsel objected to consideration of this testimony, submitting that the medical expert testimony on causation did not meet the 'most probably' rule. The trial judge admitted the testimony. The jury found for the plaintiff.

By this appeal defendants submit two questions to this court: (1) Did the lower court err in permitting medical witnesses to give opinion testimony (as recited above) as to the relationship between accident and injury over the objections of the defendant? and (2) Was there any competent evidence to allow the jury to pass upon the question of causal connection between the accident and the cancer from which Cambrell suffered subsequent to the accident and prior to his death?

We will rule on the first question prior to considering the second so as to indicate the totality of the evidence as it affects question number 2.

Where one relies upon medical testimony alone to show a causal connection between an injury and a subsequent condition, the testimony must meet the 'most probably' rule, and it is not sufficient that the malady in question 'possibly' or 'could have' or 'might have' resulted from the injury. See Cross v. Concrete Materials, 236 S.C. 440, 114 S.E.2d 828 (1960) and the numerous cases cited therein.

Where the plaintiff does not, as here, rely solely on the opinion testimony of medical experts to establish the causal connection, the aforementioned rule has not been strictly applied. We held similar testimony admissible in Grice v. Dickerson, Inc., 241 S.C. 225, 127 S.E.2d 722 (1962). Even though the testimony is not sufficient to meet the most probably' rule we hold the same admissible.

In order to determine if there was competent evidence to submit to the jury on the question of causal connection between the collision and the cancer it is necessary to review all the evidence, which will be done in the light most favorable to the plaintiff as is required under our rule.

On July 23, 1963, Gambrell was sitting under the steering wheel of his Oldsmobile which was parked alongside a curb on the left side of the street near a barber shop. His co-worker, Bozeman, was in the car also. The Oldsmobile was struck at the right rear and was knocked over the curb for a distance of 15 feet. Gambrell had been working regularly and was in what appeared to be good health, though it is now admitted that he had at that time cancer of the nasopharynx. It was back of the nose, above the throat and well protected by boney structure. After the collision Gambrell and Bozeman went to the office of the insurance company for which they worked and procured Bozeman's automobile and drove to the emergency room of the Anderson Memorial Hospital. There he was seen by Dr. Hinnant. He complained of pain in the back of his head and in the back of his neck and in the lower part of the back near the belt line. The doctor noted pain when he attempted to move his neck. X-rays were made which showed no fracture. There were no bruises, contusions or marks or cuts observed.

An opticopupillary examination was made. Dr. Hinnant testified:

'The purpose of making this examination on a patient who is complaining of headache, a headache post-trauma case, is to see if there is any evidence of hemorrhage deep in the eye, on the posterior wall of the eye, where you can visualize the blood vessels, and you can see if there has been any hemorrhage in these blood vessels, which signifies that there has been some damage to the interelements of those things which are contained within the boney calvaria area.'

The result was negative and no such injuries were found. He prescribed relaxants and narcotics for pain. This doctor did not see Gambrell again, but he was given ultra-sound treatment for pain on July 24, 25, 26 and 30.

Dr. Gaillard (Dr. Hinnant's partner) examined Gambrell on July 30. The patient reported that he was better and the doctor prescribed more relaxants and pain medicine.

On August 15, Gambrell returned to Dr. Gaillard's office complaining of headache and that the left side of his face was numb and sore. The doctor's examination revealed nothing unusual except the subjective complaints which were reported. Cortisone was prescribed.

Gambrell returned to the doctor's office on August 27 complaining of pain in the back and in the right side. There were no complaints of numbness of the face.

On September 3 he came again, reporting that his left ear seemed stopped up and there was numbness to the left side of the face. He had an inflamed ear drum for which sulfur was prescribed. Additional ultra-sound treatments for his back were given September 3, 4, 5 and 6.

On September 10, Gambrell went to see Dr. Sam Ross, an eye, ear, nose and throat specialist, complaining of poor hearing in his left ear. The doctor found an ear drum that was thick and very dark, with fluid in the middle area. He did not know the cause, but he did know there was some disturbance. He sprayed his nose and inflated the ear with air. Gambrell returned to Dr. Ross' office with the same complaint on September 12 and 19 and 26, and on October 3 and 17. The patient seemed improved on October 17, but Dr. Ross referred him to Dr. Warder in order to get an additional opinion.

After September 3 Dr. Gaillard did not see Gambrell again until November 21 when he complained of soreness in the back of his chest and in his back. Additional ultra-sound treatments were ordered. On November 27 he returned to Dr. Gaillard complaining of a lump on the side of his throat. It was an enlarged lymph node.

On November 29 Gambrell went to see Dr. Warder who found a kernel on his left neck. X-rays were made, and on December 4 it was definitely determined that he had a malignant nasopharyngioma, which is another name for cancer or a malignant tumor.

After this, Gambrell worked occasionally through January. After that time the decline in his health was rapid such that he became incapacitated,...

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    ...Armstrong v. Weiland, 267 S.C. 12, 225 S.E.2d 851 (1976); Martin v. Mobley, 253 S.C. 103, 169 S.E.2d 278 (1969); Gambrell v. Burleson, 252 S.C. 98, 165 S.E.2d 622 (1969). The rule has been succinctly stated as It is not sufficient for the expert ... to testify merely that the ailment might ......
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    • United States
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