Kennedy v. Monroe, 1560--II

• Decision Date: 05 March 1976
• Docket Number: No. 1560--II,1560--II
• Citation: 547 P.2d 899,15 Wn.App. 39
• Parties: Jack D. KENNEDY, Respondent, v. Melvin E. MONROE, Jr., and Jane Doe Monroe, his wife, Appellants.
• Court: Washington Court of Appeals

Page 39

15 Wn.App. 39

547 P.2d 899

Jack D. KENNEDY, Respondent, v. Melvin E. MONROE, Jr., and Jane Doe Monroe, his wife, Appellants.

No. 1560--II.

Court of Appeals of Washington, Division 2.

March 5, 1976.

John F. Biehl, Lee, Smart, Cook, Dunlap & Biehl, Seattle, for appellants.

H. Frank Stubbs, Tacoma, for respondent.

REED, Judge.

Plaintiff, Jack D. Kennedy, brought this action to recover for personal injuries allegedly sustained in a rearend collision on October 5, 1972. Liability was determined in plaintiff's favor by summary judgment and the case proceeded to trial on the issue of damages only.

The defendants appeal from judgment on a verdict in plaintiff's favor for $7,775, and the assignments of error present the following issues for our resolution.

1. May a nontreating physician who has examined a party for the sole purpose of qualifying as an expert witness at trial relate what that party told him concerning the cause of the injury, subjective symptoms and course of treatment?

2. If such a history is admissible through the physician, for what purpose and to what extent may it be considered?

3. May a nontreating physician testify concerning the necessity for medical services provided and the reasonableness of the charges made therefor by others?

At trial plaintiff testified concerning the collision, his alleged injuries, his complaints, suffering and discomfort, and the course of medical treatment he had undergone. Plaintiff had been seen by two doctors who took X-rays and prescribed treatment. On cross-examination plaintiff admitted he had been told that X-rays taken immediately after the accident were negative, but when he was asked if the X-rays taken about one year later were also negative, the court sustained a hearsay objection.

Plaintiff called as his only medical witness one Dr Bridgeford who had examined plaintiff for the sole purpose of testifying at trial. Dr. Bridgeford was allowed, oever objection, to relate the entire history given him by the plaintiff as to the facts of the accident, his symptoms of pain, suffering and discomfort, and his course of medical treatment. The doctor further testified that based on the plaintiff's history, he took X-rays and conducted a physicial examination, both of which objectively supported the presence of plaintiff's subjective symptoms. Utilizing the history and his findings, it was the doctor's opinion that plaintiff had sustained a subluxation or displacement of a vertebra with attending ligamentous and soft tissue injury resulting in some impairment in his neck movement accompanied by pain and discomfort. Dr. Bridgeford felt that the condition was fixed and plaintiff would continue to experience these symptoms in some degree. The doctor further stated that plaintiff's injuries probably resulted from the collision of October, 5, 1972.

Defendants countered Dr. Bridgeford's testimony with that of a Dr. Tobin who had examined the plaintiff before trial and who stated that his physical examinatios and X-rays of plaintiff provided no objective support for plaintiff's complaints.

Defendants rely primarily on the case of Petersen v. Department of Labor & Indus., 36 Wash.2d 266, 217 P.2d 607 (1950) and Hinds v. Johnson, 55 Wash.2d 325, 347 P.2d 828 (1959) to support their argument that a nontreating physician is limited to relating objective findings and answering hypothetical questions and is prohibited from testifying concerning subjective symptoms or medical history related to him by a claimant. Because Washington decisions continue to cite Petersen's distinction between the treating and nontreating physician we deem it necessary to commence our discussion by quoting extensively from that decision where the court said at pages 268--270, 217 P.2d at pages 609--610:

Conclusions as to the health and capacity of a claimant lie in the realm of medical knowledge. . . . We have not been concerned with the credibility of the medical witnesses, since expert and lay witnesses are treated alike as to that. The chief source of our recurring problem, on the question of medical testimony . . . is found in the fact that one rule applies when the medical testimony is given by a doctor who examines a patient for the purpose of treating him, while a different rule applies when the testimony is given by a doctor who examines an individual for the sole purpose of qualifying himself to be a witness as to a person's physical condition. This presents a question of the competence of such evidence in each case, because the element of Hearsay alwasy inheres in medical conclusions.

All doctors take the history of their patients, when it is needed to arrive at a correct diagnosis. Their own skilled observations, aided by the best medical equipment, lead only to objective findings. They cannot clinically observe a pain or a functional disorder. Such subjective symptoms must be related to them by the patient, or by someone on his behalf, and are frequently indispensable to a correct diagnosis and course of treatment.

The doctor receives the statement of these subjective symptoms informally, and they are not given under oath, nor does he attempt to rebut them. The self-interest of the patient is a sufficient guarantee of the trustworthiness of such statements, where the examination is made for the purpose of treatment. Thus, it is the universal rule that, if the doctor who treats a patient later becomes a witness, he may testify as to his medical conclusions, which may be based substantially on subjective symptoms which are in the realm of hearsay. This is a recognized exception to the hearsay rule of evidence. . . . (Emphasis added.)

The reason for this exception to the rule disappears instantly, when the examination is not made within the doctor-patient relationship for the purpose of treatment, but is made only for the purpose of qualifying the doctor as a witness. Under such circumstances, a claimant may, in describing his symptoms to the doctor, paint a dark picture. He may think his best interest will be served by exaggeration and fabrication of symptoms. Hence, medical conclusions based upon these statements, which were not given under oath or subject to cross-examination, violate the hearsay rule and are not admissible. . . .

. . . The doctor who examines the party only for the purpose of qualifying as a witness, is limited in his testimony to objective findings and the answering of hypothetical questions.

(Citations omitted.)

It the case of Kresoya v. Department of Labor & Indus., 40 Wash.2d 40, 240 P.2d 257 (1952), our Supreme Court noted that it had held, in a long line of cases, that a physician is not restricted to testimony concerning his objective findings, but may couple those findings with other competent evidence in reaching a medical conclusion. ¹ The Kresoya court also points out that in Knowles v. Department of Labor & Indus., 28 Wash.2d 970, 184 P.2d 591 (1947) a nontreating doctor was allowed to consider the testimony of lay witnesses together with his own objective findings so as to causally connect an aggravation to the original injury. Using these cases as the springboard, the Kresoya court appears to depart from the strict Petersen rule regarding the testimony of a physician who saw claimant but once for the purpose of testifying on his behalf, by stating at page 45, 240 P.2d at p. 260:

In order that Dr. Williams might acquire testimonial knowledge of the condition of appellant, it was necessary that he obtain from him some of the history of the case. He had the benefit of X-ray pictures. He discovered by them and the tests he made the existence of many objective symptoms. He then became able to form an opinion that the condition of appellant caused by the original injury had become aggravated.

. . . The rule that an expert medical witness may not base his opinion upon subjective symptoms alone is designed to protect . . . against unfounded claims . . . If such claims could be established by the testimony of a physician who based his opinion entirely upon what the claimant told him, it would open the door to fraudulent claims, as well as those mistakenly made in good faith. A claimant might honestly believe his subsequent condition arose out of his original injury, but this is a medical question and an opinion thereon must be derived from sources other than the claimant's statement. These protective rules, however, must not be applied to situations where there is a combination of subjective and objective symptoms, which an expert may be able to tie together, and we think this is made very clear by a careful reading of the cases we have cited. The physician must of necessity obtain some history from the claimant, and has a right to make proper use of it in connection with objective findings which he as an expert may make by an examination, the making of tests, the use of X-ray pictures and other proper data.

(Emphasis added.)

Later decisions cite both Petersen and Kresoya, but not until Justice Hunter's dissent in Cooper v. Department of Labor & Indus., 54 Wash.2d 428, 342 P.2d 218 (1959) has there been any suggestion that Kresoya might have changed the Petersen rule. Justice Hunter refers to the Petersen rule at page 434, 342 P.2d at page 222 as follows:

This rules out the consideration of subjective symptoms, even though coupled and related with objective findings. The rule announced by this language in the Petersen case, Supra, was therefore impliedly overruled in the Kresoya case, Supra. We should now, for clarification, expressly overrule the Petersen case in so far as it is inconsistent with the rule announced in the Kresoya case. In the instant case, a review of the record discloses that the conclusions of Dr. Steele were not based on subjective symptoms Alone but upon a combination of related subjective and objective symptoms. Thus, this testimony comes within the rule of the Kresoya case, and the trial court, therefore, erred...