Goldthwaite v. Sheraton Restaurant

• Decision Date: 20 October 1958
• Citation: 145 A.2d 362,154 Me. 214
• Parties: , 79 A.L.R.2d 881 Helen GOLDTHWAITE v. SHERATON RESTAURANT and Utica Mutual Insurance Co.
• Court: Maine Supreme Court

Page 362

145 A.2d 362

154 Me. 214, 79 A.L.R.2d 881

Helen GOLDTHWAITE v. SHERATON RESTAURANT and Utica Mutual Insurance Co.

Supreme Judicial Court of Maine.

Oct. 20, 1958.

Berman & Berman, Lewiston, for petitioner.

Verrill, Dana, Walker, Philbrick, & Whitehouse, John A. Mitchell, Portland, for respondents.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

WEBBER, Justice.

This was an appeal from a pro forma decree of the Superior Court implementing a decision of the Industrial Accident Commission. It is not disputed that on June 1, 1956 the petitioner, while at work, fell the length of the cellar stairs in her employer's place of business. Prior to the accident she had apparently enjoyed good health and had regularly performed hard physical work. The immediate noticeable effects of the fall were slight but she experienced pain in her lower back and on June 7th, at the request of her employer, consulted her physician, Dr. Haas. Although she continued work for some time, her condition steadily deteriorated until she was forced to cease work altogether on September 1st. Although an accurate diagnosis was not at first possible on the basis of the symptoms manifested, it has now been determined that the petitioner is suffering from progressive muscular atrophy, a disease the exact cause of and cure for which remain unknown.

The evidence presented a marked conflict in medical testimony. Dr. Haas, an experienced general practitioner, felt that he could express an opinion 'within reasonable medical certainty' that a trauma causing a general concussion of the whole spine could damage the motor neuron cells and produce atrophy of the muscles. It was his opinion that all the symptoms noted, and especially the complete change in health which occurred shortly after her fall, were consistent with the view that petitioner's disability was caused by the accident.

On the other hand, Dr. Bidwell, a qualified neurosurgeon, stated very positively that trauma could never cause nor accelerate progressive muscular atrophy. It was his opinion that it was a mere coincidence that the first symptoms of muscular atrophy appeared shortly after the accident. In substance this was also the opinion of Dr. John P. Greene, an orthopedic surgeon, whose written report was received in evidence in lieu of his oral testimony.

During the direct examination of Dr. Bidwell, the following questions and answers were received:

'Q. Doctor, you say that physical trauma has been discarded as a possible causative factor of this disease? A. That is correct.

'Q. Do you have any medical authority for that answer? A. I do. The three-volume textbook of neurology, Kinnier Wilson, edited by Bruce, has for a good many years stood as the recognized reference textbook of neuro-medical diseases. Its most recent issue is, I believe, less than two years old and there is no other book in the field of neurology that can stand in such relationship to the field as does Kinnier Wilson.'

After some colloquy, counsel entered into the following stipulation:

'The Commissioner: It is agreed and stipulated that attorneys for both parties will submit to the Commission quotations or abstracts from certain medical textbooks and authorities which before submission to the Commission will have the approval of each attorney.'

Without objection, both counsel by examination pursued the matter of medical authority at great length. The opinion of the witness was solicited on cross examination as to whether certain writers of medical textbooks are recognized authorities in their field. On redirect examination the witness was permitted to criticise certain of these medical treatises as unrevised or elementary. At the close of the hearing, pursuant to their stipulation, counsel filed certain abstracts from medical treatises, not one of which professed to rule out trauma as a precipitating or accelerating cause of muscular atrophy. On the contrary, several of the authorities recognized trauma as a probable accelerating cause. Kinnier Wilson, specifically relied upon by Dr. Bidwell, stated: 'Trauma is not always perhaps to be lightly dismissed.' This statement was followed by a discussion of some of the evidence suggesting that trauma may in some instances be a precipitant.

In an exhaustive opinion, the Commissioner, after carefully and accurately analyzing all the evidence, concluded that the petitioner's disability was so related to the accident as to be fully compensable. In reaching this result, the Commissioner gave weight to (1) the excellent health of the petitioner up to the time of her fall, (2) the rapid onset of symptoms of muscular atrophy after the accident and the steady deterioration of her condition thereafter, (3) the medical opinion of Dr. Haas, and (4) the medical authorities submitted by counsel which tended to support the opinion of Dr. Haas and to contradict in part the opinion of Dr. Bidwell. The respondent contends that the opinion of Dr. Haas was at best conjectural and that in adopting it, the Commission has based a decision on speculation and guesswork. The respondent also asserts that the medical treatises were hearsay evidence and entitled to no weight whatever. In short, the respondent maintains that there was no legally competent evidence to support the decision.

If the accidental fall suffered by the petitioner 'lighted up', accelerated or precipitated the disabling effects of a disease hitherto quiescent, the resulting disability was compensable. Eleanora Gagnon's Case, 144 Me. 131, 65 A.2d 6. As was said in Mailman's Case, 118 Me. 172, at page 179, 106 A. 606, 609, 'It is sufficient however (assuming other elements proved), if by weakening resistance or otherwise an accident so influences the progress of an existing disease as to cause death or disablement.'

Does the decision here rest upon something more substantial than mere conjecture and speculation? We think that it does. The nature and severity of the accidental fall are not disputed. That painful injuries to the back resulted which required medical attention is not questioned. The marked change in the petitioner's health commencing shortly after the accident is some evidence of accidental causation of the later disability. Taylor's Case, 127 Me. 207, 212, 142 A. 730; Larrabee's Case, 120 Me. 242, 113 A. 268; Ballou's Case, 121 Me. 282, 283, 116 A. 591; although it would not suffice if it were the only evidence, Shaw's Case, 126 Me. 572, 140 A. 370. The opinion of a qualified medical expert that the injuries accidentally inflicted could and did produce the aggravated manifestations of the symptoms of muscular atrophy, even though disputed by other medical experts, was competent legal evidence to be considered by the Commission. In Taylor's Case, supra, the decedent employee engaged in some heavy lifting such as might induce strain. However, he made no complaint and there was no other indication of accident at the time of the occurrence. Shortly after, however, he began to suffer pain in the chest and shortness of breath. About ten days later he suddenly died. The attending physician gave it as his opinion that it was probable that the decedent died of pulmonary embolism and that lifting was a material factor in producing it. A finding by the Commission that there was some causal connection between the heavy lifting and the death was deemed to have the support of competent evidence and reasonable and rational inferences drawn therefrom. We are satisfied that in the instant case the decree is supported by competent evidence and satisfies the rule that 'it may be slender, but it must be evidence, not speculation, surmise, or conjecture.' Taylor's Case, supra, 127 Me. at page 208, 142 A. at page 731.

We turn now to consideration of the abstracts from medical treatises which were admitted by stipulation and agreement and which influenced to some extent the result reached by the Commission. These obviously constituted hearsay evidence and were subject to the rules of law imposing limitation on the use thereof.

'The general rule, supported by many cases and recognized apparently in all states in which the question has arisen, except in Alabama, is that medical books or treatises are not admissible to prove the truth of the statements therein contained. (The rule assumes that the books or treatises are properly identified and authenticated, and applies notwithstanding the fact that it is shown that they are recognized as standard authorities on the subject to which they relate).' 65 A.L.R. 1102; 20 Am.Jur. 816, Sec. 968. It appears to be quite generally held that when a medical expert assumes to base his opinion, partly at least, on authorities and not exclusively on his own experience, he may be cross examined with respect to the authorities for the purpose of disparaging or discrediting his testimony. Courts, however, hold very divergent views as to the right to resort to medical authority on cross examination in the instances when the expert does not base his opinion even in part upon the authorities. Annotation 82 A.L.R. 440; Reilly v. Pinkus, 1949, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63; Dolcin Corp. v. Fed. Trade Comm., 1954, 94 U.S.App.D.C. 247, 219 F.2d 742. In determining what course was open to the Commission in the instant case, it is interesting to note that Dr. Bidwell, on direct examination made reference to Kinnier Wilson as a recognized authority supporting his opinion. It was thereafter open to counsel for petitioner to make proper use of recognized medical authorities for the limited purpose of impeachment of the medical witness. The respondent concedes all this but insists that the Commission failed to limit its use of the evidence to impeachment but rather gave weight to it as evidence of the truth of the matter asserted. The stipulation under which the evidence was admitted, however, contained no limitation upon the use or purpose for...