Mullaney v. Goldman
| Citation | 398 A.2d 1133,121 R.I. 358 |
| Decision Date | 09 March 1979 |
| Docket Number | No. 77-375-A,77-375-A |
| Parties | John M. MULLANEY v. Leonard Y. GOLDMAN. ppeal. |
| Court | United States State Supreme Court of Rhode Island |
This is an appeal by the defendant, Leonard Y. Goldman, from a Superior Court judgment entered against the defendant in the amount of $65,829.10 plus interest in an action arising from an automobile accident which occurred on October 13, 1972 in Warwick, Rhode Island. The jury determined that the defendant was 75 percent negligent and awarded damages for bodily injury, medical bills, pain and suffering, and loss of earning capacity.
After the accident, plaintiff was taken to Kent County Memorial Hospital where a laceration in his scalp was sutured and his head, shoulders and hand were x-rayed. On October 20, 1972, plaintiff visited the office of his family physician to have the sutures removed. At that time the family physician's initial diagnosis was that plaintiff had sustained a cerebral concussion. Four days later, plaintiff again visited the family physician and complained of dizziness and numbness in his left hand, and the family physician had additional x rays taken at Kent County Memorial Hospital. In the physician's opinion, the x rays revealed a small undisplaced fracture of the first dorsal vertebra.
The plaintiff was referred to a specialist in orthopedic surgery who first examined him on November 3, 1972. At trial, the orthopedic surgeon testified that at the first visit plaintiff complained of headaches and exhibited acute pain in the base of his neck. Although the orthopedic surgeon found plaintiff to be neurologically intact, the orthopedic surgeon also testified that x rays taken on the date of the first visit revealed a finding consistent with a small chip fracture of the first dorsal vertebral body. He provided plaintiff with medication and routinely saw plaintiff until April 30, 1973, when the orthopedic surgeon believed that plaintiff's fracture was healed. The plaintiff was, however, referred back to his family doctor for persistent complaints of major headaches.
The family physician also referred plaintiff to a neurosurgeon because of plaintiff's persistent complaints of headaches in the posterior part of the head and the neurological deficit in plaintiff's left arm. On April 23, 1973, the neurosurgeon completed an extensive examination of plaintiff, including an electroencephalogram and brain scan. The neurosurgeon did not see plaintiff again because the brain tests and neurological examination were normal. The plaintiff was therefore returned to the care of his family physician.
The plaintiff was examined by defendant's specialist in orthopedic surgery in November 1972 and July 1973. This specialist testified that new x rays were taken of plaintiff's cervical area, that he did not see a fracture, and that plaintiff's problems were muscular and not skeletal. He did, however, testify that in November 1972 plaintiff had some nerve patchiness in the left arm which was no longer evident by the time of the July 1973 examination. On the other hand, plaintiff's family physician testified that in September 1975 plaintiff was still suffering from the neurological deficit and weakness in the left hand.
The plaintiff's physical maladies continued. On December 2, 1975, plaintiff was examined by a gastroenterologist on referral from plaintiff's family physician who had determined through x-ray examination that plaintiff was suffering from a gastric ulcer. On this date, the gastroenterologist elicited plaintiff's medical history including mention of an ulcer in 1968 and the neck fracture in 1972. The gastroenterologist also recorded, as part of the medical history, plaintiff's feelings of being shaken-up and tense. The plaintiff was subsequently hospitalized for treatment of the ulcer and continued to see the gastroenterologist on an outpatient basis until May 27, 1976.
At trial, plaintiff attempted to establish that the 1975 ulcer was compensable because it was proximately caused by feelings of tension produced by the October 1972 accident. We note that the gastroenterologist was the only doctor who treated plaintiff for his 1975 ulcer. We have reviewed the record, however, and have found that no testimony was elicited from the gastroenterologist which served to connect causally the accident in 1972 and the ulcer in 1975. Instead, the gastroenterologist was asked the following question on direct examination:
"Q Doctor, can you tell us, based on a reasonable degree of medical certainty, whether there is any relationship between the history that was given to you by the patient and the condition that you found?"
The answer to this question was stricken, but the gastroenterologist was asked a virtually identical question by the trial justice. In response the gastroenterologist stated:
A motion to strike this testimony was denied and defendant contends on appeal that the denial was reversible error. 1
We believe that the trial justice committed prejudicial error in denying defendant's motion to strike the gastroenterologist's response. First, the questions did not address the issue of whether plaintiff's 1975 ulcer was the proximate result of the automobile accident. Both plaintiff's counsel and the trial justice asked the gastroenterologist if there was a relationship between plaintiff's medical history and the 1975 ulcer. Clearly, plaintiff's medical history included possible causes for the ulcer other than the accident. Thus, the gastroenterologist's response was irrelevant because he failed to establish any probable causative effect of the accident upon the 1975 ulcer. Quite simply, the response did not tend to establish that the connection between the accident and ulcer was more or less probable. See Capezza v. Hertz Equipment Rental Corp., 118 R.I. 1, 371 A.2d 269 (1977). Here the gastroenterologist's response was that he thought there "could be a reasonable statement that there is a relationship between the degree or of tension that Mr. Mullaney was having and his ulcer." This testimony was clearly irrelevant to any connection between the defendant's negligence, which led to the automobile accident, and plaintiff's 1975 ulcer.
In a negligence case, the plaintiff has the burden of establishing that there was a causal relation between the act or omission of the defendant and plaintiff's injury. Schenck v. Roger Williams General Hospital, R.I., 382 A.2d 514...
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