Pacific Employers Insurance Company v. Gibson

• Decision Date: 07 July 1967
• Docket Number: No. 16931,16931
• Citation: 419 S.W.2d 239
• Parties: PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant, v. Kenneth Edward GIBSON, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 239

419 S.W.2d 239

PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant, v. Kenneth Edward GIBSON, Appellee.

No. 16931.

Court of Civil Appeals of Texas Dallas.

July 7, 1967.

Rehearing Denied Sept. 29, 1967.

Royal H. Brin, Jr., and Patrick F. McGowan, of Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.

Herbert L. Hooks, of Gibbs, Hooks & Wyrick, Dallas, for appellee.

CLAUDE WILLIAMS, Justice.

Alleging that he had sustained the total loss of use of his left leg as a result of an injury which happened on January 26, 1960 while working as a carpenter in Dallas County, Texas, Kenneth Edward Gibson brought this action pursuant to the Workmen's Compensation Law of Texas (Art. 8306, et seq., Vernon's Ann.Civ.St.) against his employer's insurance carrier, Pacific Employers Insurance Company, seeking to recover the statutory benefits for such disability. The case was tried to a jury which returned a verdict favorable in all respects to Gibson. The trial court rendered judgment in favor of appellee for total loss of the use of the leg for a period of 200 weeks. Appellant insurance company appeals.

The primary basis of appellant's assault on the judgment is the refusal of the trial judge to strike from the record the testimony of Dr. Loiselle, appellee's only expert medical witness. Appellant contends that since the record reveals without controversy that Dr. Loiselle examined appellee only on one occasion for the purpose of enabling him to render an opinion, and not to treat appellee, his testimony as to appellee's physical condition and estimate of disability, which were admittedly based upon the history of the case and subjective symptoms given to him by appellee, was not admissible . A careful review of the entire record in the light of the applicable authorities lead us to the inescapable conclusion, and we so hold, that the trial court did commit error in this respect and that the judgment must therefore be reversed.

Appellee sustained the injury to his left knee while working as a carpenter in 1960. His employer took him to the Chester Clinic where he was examined by Dr. Sharp who x-rayed his knee and put him on crutches for two weeks with an elastic band around his leg. He was also examined by Dr. Booth at the clinic who drew off some fluid from his knee. He returned to work in about two weeks wearing a leg bandage. His knee condition caused him to work much slower than before. His knee continued to bother him and the insurance company sent him to Dr. Herrick who x-rayed his knee and examined him. He later saw Dr. Knight, another bone specialist. In 1964, about four years after he had been injured, he went to see Dr. Loiselle. When asked why he went to see Dr. Loiselle he said that a friend had recommended him as being a good doctor. He also testified that he went to Dr. Loiselle 'to get a view of a doctor that wasn't associated with an insurance company, one that they didn't send me to.' He said he did not ask Dr. Loiselle to treat him for his injuries.

Dr. Loiselle testified that he saw appellee on one occasion which was May 8, 1964; that he obtained a complete history from Mr. Gibson which included a statement as to how he had hurt himself and his various complaints. He then gave appellee a physical examination, including x-rays of the knee. He had never seen Mr. Gibson before nor did he see him any time after the May 8th examination. Based upon the history of the case given by Mr. Gibson, together with the subjective symptoms and findings alone, he rendered an opinion that Mr. Gibson was suffering a disability to his left knee related to the accident in 1960. He was allowed to give his opinion to the effect that due to this injury and incapacity Mr. Gibson was unable to perform work as a carpenter over an extended period of time.

On cross-examination Dr. Loiselle admitted that he had not treated Mr. Gibson and had not been asked to give him treatment. He further testified that he based his opinion concerning loss of use of the leg solely upon the history of the case given by Mr. Gibson together with subjective symptoms. He stated that there were no objective symptoms or findings evident from the physical examination or x-rays made of the knee. Thereupon, counsel for appellant moved the court to strike from the record the testimony of Dr. Loiselle and to instruct the jury not to consider same. The basis for such motion was that the doctor's testimony was obviously based upon hearsay, i.e., the history of the case given by the patient together with subjective symptoms, and that since he was only the examining doctor, and not the treating doctor, such testimony was inadmissible . The trial court overruled such motion.

The record reveals that at the time the examination was made by Dr . Loiselle in May 1964 the suit had not been filed in the district court but claim for compensation had been pending and the insurance company, appellant herein, had made at least one weekly payment of compensation. Mr. Gibson had not disposed of his claim for compensation and was represented by attorney Hooks at the time he went to see Dr. Loiselle.

The rule of law governing this situation is firmly established in our jurisprudence and is set forth in 63 Tex.Jur.2d § 447, p. 483, as follows:

'A doctor who is not a treating physician, and who examined the patient only for the purpose of making a report and testifying if necessary, cannot base his opinion as to the condition of the patient on the history of the case as related to him by the patient. It must be based on a study of objective symptoms and X rays.'

The rationale of this rule was developed many years ago and was clearly enunciated by the court in Gaines v. Stewart, 57 S.W.2d 207 (Tex.Civ.App., Austin 1933), which involved a case in which the doctor examined the injured party not for treatment but to enable him to testify as a witness. The court in holding the doctor's opinion testimony inadmissible said:

'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. ...