Loper v. Andrews, A--11188

• Decision Date: 25 May 1966
• Docket Number: No. A--11188,A--11188
• Parties: Billy Earl LOPER, Petitioner, v. Lula ANDREWS, Individually and as next friend of Charles Andrews, a minor, Respondent.
• Court: Texas Supreme Court

Page 300

404 S.W.2d 300

Billy Earl LOPER, Petitioner, v. Lula ANDREWS, Individually and as next friend of Charles

Andrews, a minor, Respondent.

No. A--11188.

Supreme Court of Texas.

May 25, 1966.

Rehearing Denied July 13, 1966.

Jones, Boyd, Westbrook & Lovelace, L. Wayne Scott, Waco, an appeal with above firm, for petitioner.

Reagan & Welch, Thomas Bartlett, Marlin, with above firm, for respondent.

STEAKLEY, Justice.

We granted writ of error in this case to review the problem of the admissibility under Article 3737e ¹ of medical opinion entries in hospital records. Initially, however, we consider the view of the Court of Civil Appeals (395 S.W.2d 873) that the objection leveled at the records here involved was insufficient to preserve this point for review.

The following re sume will present the two problems. Respondent, individually, and as next friend for Charles Andrews, sued Petitioner in a personal injury action for damages resulting from an automobile collision. Judgment in her favor was affirmed by the Court of Civil Appeals. A controlling question for reasons later discussed was whether the boy suffered a skull fracture in the accident. Dr. R. B. Swetland was the treating physician and through him Respondent offered in evidence certain hospital records, the entries of which were made over his signature. The entry in question read: 'I have referred him to Dr. Hutchings for examination and again he finds a papilledema of the left optic disc of about two diopters. This, he believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure. This (is) probably attributable to the automobile accident suffered October 5, 1963.'

When the hospital records were tendered by counsel for Respondent to counsel for Petitioner, the latter stated to the trial court, 'If the court please, with the exception of one thing, I would agree. * * * I object to this as not being an opinion of the doctor himself. Just this one sentence here. I object to that one sentence. Otherwise I don't have any objection. * * * I object because it is the opinion of another doctor.' Later, upon the actual offer of the records, counsel for Petitioner in making his objection read the entry in question to Dr. Swetland, who was on the witness stand, and this colloquy follows: Question: 'That sentence includes the opinion of Dr. Hutchings?' Answer: 'Yes.' Question: 'What he told you?' Answer: 'Yes, sir.' Thereupon this objection was stated: 'We object to that portion of these records. I have no objection to the rest of it. I object on the basis that although it is a hospital record, it includes the opinion of another doctor not here for cross-examination. And, if I understand the law correctly, medical records are admissible so long as they do not contain opinion of a doctor not present and subject to cross-examination. I have no objection to the rest. * * *'

The only sentence in the entry carrying an opinion of Dr. Hutchings is the sentence, 'This, he believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure.' The previous sentence, 'I have referred him to Dr. Hutchings for examination, and again he finds a papilledema of the left optic disc of about two diopters' is a statement of a factual finding. The final sentence, 'This (is) probably attributable to the automobile accident suffered October 5, 1963' does not purport to be the statement of Dr. Hutchings.

We will regard the objection as sufficient, although we recognize with the Court of Civil Appeals that it is subject to some doubt whether the objection pointed the court and opposing counsel to the question of whether the record, otherwise admissible under Article 3737e notwithstanding its hearsay nature, was rendered inadmissible to the extent of the opinion entry attributed to Dr. Hutchings. In Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup.1962), there was only the general objection 'that the records were not properly proven up, and that they were hearsay,' but we wrote upon the question of the admissibility of a hospital record containing an entry not within the personal knowledge of the hospital personnel.

Certain other preliminary matters will be noted. Counsel for Petitioner stated in oral argument that the statutory predicate is satisfied here, i.e., both Dr. Swetland and Dr. Hutchings were members of the hospital staff. Nor is any point made that it was not the regular procedure of the hospital for a staff physician such as Dr. Swetland to refer a patient for a particular examination and diagnosis to another staff member such as Dr. Hutchings, and for the latter to transmit his diagnosis for recordation in the hospital records. It is settled that Article 3737e applies to hospital records and that the statute creates an exception to the hearsay rule deemed justified notwithstanding the deprivation of the right of cross-examination.

We turn to the problem of the case. Article 3737e, as here pertinent, provides:

'Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:

'(a) It was made in the regular course of business;

'(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;

'(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.

'Sec. 4. 'Business' as used in this Act includes any and every kind of regular organized activity whether conducted for profit or not.'

There are two direct expressions by this Court construing Article 3737e with respect to hospital records. In refusing the application for writ of error in Travis Life Insurance Co. v. Rodriguez, Tex.Civ.App., 326 S.W.2d 256 (1959), we said by per curiam opinion, 160 Tex. 182, 328 S.W.2d 434: 'It is our view that the statute has been correctly construed by that court * * *.' Against a hearsay objection, the Court of Civil Appeals construed Article 3737e 'so as to authorize the admission in evidence of the hospital records, including the diagnosis of leukemia shown thereon, proved and admitted in evidence in this case.' The opinion clearly rested on the assumed fact that a diagnosis of leukemia is not one about which physicians ordinarily differ. So the problem of the admissibility of hospital records containing diagnoses resting substantially on the expert opinion of a doctor and partaking of controversy was not reached. See Murray, Admissibility of Hospital Records--A Continuing Problem, 29 Tex.B.J. 163, 211 (1966).

In Skillern & Sons, Inc. v. Rosen, supra, we said: 'Some employee or representative who either made the record or transmitted the information to another to record must have had personal knowledge of the act, event or condition in order for such record to be admissible under the business records exception to the hearsay rule.' The statutory requirement of personal knowledge, apparently unique to the Texas statute, was held to exclude a statement in a hospital record from an outside source--a volunteer--as to how the accident happened. This does not reach our problem here since Dr. Swetland and Dr. Hutchings were members of the hospital staff and were acting in accordance with the regular procedure of the hospital.

It appears that the Courts of Civil Appeals have under various circumstances construed our per curiam opinion in Rodriguez as a holding that hospital records containing disputable opinion entries are admissible under Article 3737e. See State Automobile & Casualty Underwriters v. Reagan, Tex.Civ.App., 337 S.W.2d 522 (1960, no writ hist.); Missouri-Pacific R. Co. v. Watson, Tex.Civ.App., 346 S.W.2d 640 (1961, writ ref. n.r.e.); White v. McElroy, Tex.Civ.App., 350 S.W.2d 249 (1961, writ ref. n.r.e.); Western Fire Indemnity Co. v. Bradshaw, Tex.Civ.App., 356 S.W.2d 832 (1962, writ ref. n.r.e.); Texas Employers' Ins. Ass'n v. Dennis, Tex.Civ.App., 372 S.W.2d 559 (1963, writ ref. n.r.e.); Weaver v. Swofford, Tex.Civ.App., 386 S.W.2d 624 (1965, no writ hist.); Goshorn v. Hattman, Tex.Civ.App., 387 S.W.2d 422 (1965, writ ref. n.r.e.); St. Paul Fire & Marine Ins. Co. v. Haynie, Tex.Civ.App., 389 S.W.2d 488 (1965, no writ hist.). The opinion of the Court of Civil Appeals in Watson is representative; it was there said: 'We conclude, however, that the opinion and the Supreme Court's approval of the opinion (referring to Rodriguez) may not be so limited (that diagnostic reports are admissible only in cases where the diagnosis is one about which physicians do not ordinarily differ).' The Court of Civil Appeals, however, then held that 'The exclusion of the diagnostic report in any event was harmless' with which we were in agreement. So our refusal of the application for writ of error with the notation, 'no reversible error,' reserved the question. The same reservation and for the same reason is implicit in our refusal of the application for writ of error in the other cases listed above.

Prior to Rodriguez, it was held in Martinez v. Williams, 312 S.W.2d 742 (Tex.Civ.App. 1958, no writ hist.), that the statement by a physician consisting of an opinion based upon medical findings of conditions not obvious or patently observable to persons generally should be excluded; and that in such a case the doctor should be brought into court where he would be subject to cross-examination by opposing counsel. Martinez did not come to this Court for review but was followed in Texas Employers' Ins. Ass'n v. Odom, 371 S.W.2d 429 (Tex.Civ.App.1963, writ ref. n.r.e.). In Odom, however, the Court also held the admission of the records harmless in view of the personal testimony at the trial of the same doctor...