Goodrich v. Tinker

• Decision Date: 12 February 1969
• Docket Number: No. 5978,5978
• Citation: 437 S.W.2d 882
• Parties: Kathleen GOODRICH, a feme sole, Appellant, v. Floyd A. TINKER, Appellee. . El Paso
• Court: Texas Court of Appeals

Page 882

437 S.W.2d 882

Kathleen GOODRICH, a feme sole, Appellant, v. Floyd A. TINKER, Appellee.

No. 5978.

Court of Civil Appeals of Texas El Paso.

Feb. 12, 1969.

Rehearing Denied March 5, 1969.

Scott, Hulse, Marshall & Feuille and Charles R. Jones, Richard T. Marshall, El Paso, for appellant.

William L. Merkin, Kemp, Smith, White, Duncan & Hammond, El Paso, for appellee.

OPINION

PRESLAR, Justice.

This cause of action was brought by Floyd A. Tinker, for personal injuries and damages arising out of an automobile collision. The defendant filed a cross-action for her damages arising out of the accident, and International Insurance Company intervened for Mr. Tinker's automobile damage. The trial of the case was to a jury and the verdict was in all respects favorable to the plaintiff-appellee. Judgment was entered in favor of the plaintiff-appellee Tinker against the defendant-appellant in the sum of $7,200.00, and in favor of the intervenor, International Insurance Company, against the defendant-appellant for the sum of $1,636.55 for the automobile damages. From such judgment the defendant Goodrich appeals, presenting some eleven points of error.

Appellant's first and second points of error complain of the admission into evidence of the testimony of Dr. Saul Gonzalez for the reason that such doctor was an examining or testifying doctor, and his opinions as to the diagnosis and prognosis of the plaintiff's alleged injuries were based and founded on subjective statements of the plaintiff and prior history and medical reports of the physical condition of the plaintiff, which records and reports were not in evidence. We are of the opinion that the admission of such evidence was error and that the case should be remanded for another trial.

At the time of the accident which is the basis of this lawsuit, plaintiff-appellee Tinker was in the army and received medical attention and treatment at the army hospital following the accident. He was apparently treated by several military doctors, none of whom were called as witnesses in the trial. The doctor who was called as a witness, and whose testimony is in question here, was Dr. Saul Gonzalez, who saw appellee Tinker only one time, and that some eighteen months after the accident. Appellant relies upon the established rule of law that a doctor who is not a treating doctor and who examines the patient for the purpose of making a report or testifying if necessary in court cannot base his opinion testimony as to the condition and prognosis of the injury to the plaintiff upon the subjective complaint and history of the case. Such opinions must be based on a study of objective symptoms and x-rays. Pacific Employers Insurance Company v . Gibson (Tex.Civ.App.1967) 419 S.W.2d 239 (and many cases therein cited); Traders and General Ins. Co. v. Chancellor (Tex.Civ.App., El Paso, 1937), 105 S.W.2d 720, writ dismissed (and cases therein cited); Texas & N.O.R. Co. v. Stephens (Tex.Civ.App.), 198 S.W. 396; Texas Employers Ins. Ass'n v. Wallace (Tex.Civ.App.), 70 S.W.2d 832; Traders & General Ins. Co. v. Rhodabarger (Tex.Civ.App., El Paso), 93 S.W.2d 1180; and Gaines v. Stewart (Tex.Civ.App.1933) 57 S.W.2d 207. Appellee agrees that if Dr. Gonzalez was only an 'examining' or 'testifying' doctor, then his opinions based upon the prior medical history and subjective symptoms should not have been admitted. Appellee contends that Dr. Gonzalez was not an examining doctor, but was, in fact, a treating doctor because he did in fact examine appellee Tinker and did treat him in that he prescribed treatment for him. We do not think the matter is as simple as deciding by definition alone whether the doctor was a 'treating' doctor or an 'examining' doctor. If such were the case, the ruling would have to be against appellee, for what was done does not amount to 'treatment' as defined in Black's Law Dictionary, Fourth Edition, page 1673: 'TREATMENT. A broad term covering all the steps taken to effect a cure of an injury or disease; the word including examination and diagnosis as well as application of remedies. Kirschner v. Equitable Life Assur. Soc. of U.S., 157 Misc. 635, 284 N.Y.S. 506, 510; Hester v. Ford, 221 Ala. 592, 130 So. 203, 206.' Simply deciding whether the doctor was an examining or treating doctor by definition will not decide the questions here presented as to whether the expert opinions expressed were admissible. Rather, we must look to the foundation of such expert's opinion and, to some extent, the basis and reasons for the above rule. The rationale or reasons behind the above rule are discussed and set forth in Pacific Employers Insurance Company v. Gibson, supra, with the following quotation, among others, from Gaines v. Stewart, Tex.Civ.App., 57 S.W.2d 207:

"The test in such case appears to be whether the motive and opportunity to fabricate without detection the symptoms complained of is presented. Undoubtedly a qualified physician can testify as to symptoms and conditions of injury or disease made known to or discovered by him in his treatment of his patient. Or to such conditions as he finds in the patient from his own independent examination of him. But where an injured party, for the express purpose of qualifying a physician to testify in his behalf about matters on which such party seeks recovery, makes statements as to subjective matters of pain, suffering, etc., not disclosed to the physician by other and independent means, there exists both motive and opportunity for the patient to magnify or feign injuries. Under such circumstances his statements become clearly self-serving and hearsay, and should not be admitted."

And the Gibson case further quotes from Texas Employers Ins. Ass'n v. Wallace, Tex.Civ.App., 70 S.W.2d 832, as follows:

"We are of the opinion that the foregoing testimony, admitted over said objections, was inadmissible. The doctor's opinion was based in some undetermined measure, and in part, at least, upon hearsay statements made to him by the injured employee. It is a sound rule of law which prohibits the introduction of such testimony. The opinion of an expert should not be permitted to go to a jury when the same is predicated in whole, or in part, upon the unsworn statement of an interested party who may be tempted to unduly magnify the basis or grounds upon which the validity of the opinion depends. To permit the expert's opinion, based upon such statements pertaining to history of case and subjective symptoms, to go before the jury, would open the door for the grossest fraud by affording the litigant an opportunity to magnify his injuries or suffering and enhance the damages by incompetent, self-serving statements in effect carried before the jury by the expert and bolstered up by his opinion."

Underlying the reasons for...