Penn Fruit Co. v. Clark

• Decision Date: 10 December 1969
• Docket Number: No. 91,91
• Parties: PENN FRUIT COMPANY, Inc., t/a Big Valu Store v. Ruth L. CLARK.
• Court: Maryland Court of Appeals

Page 135

256 Md. 135

259 A.2d 512

PENN FRUIT COMPANY, Inc., t/a Big Valu Store v. Ruth L. CLARK.

No. 91.

Court of Appeals of Maryland.

Dec. 10, 1969.

Robert H. Bouse, Jr., and John F. King, Baltimore (Anderson, Coe & King, Baltimore, on the brief), for appellant.

John F. Foley, Jr., Towson (George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Towson, on the brief), for appellee.

Before HAMMOND, C. J., FINAN, SINGLEY, SMITH and W. HARVEY BEARDMORE, JJ., and Special Judge.

BEARDMORE, Judge.

Precluded from adducing evidence which, it alleges, would show a lack of permanent injury, Penn Fruit Company, Inc. (Penn) appeals from a $9,000 judgment entered on a jury verdict in favor of Mrs. Ruth L. Clark for personal injuries when she slipped and fell in the appellant's store on October 29, 1965.

Upon entering Penn's store in the Mondawmin Shopping Center, Mrs. Clark went directly to the meat counter where she picked out two packages of scrapple. She then turned from the counter, took approximately two or three steps in the direction of the check-out register, when her right foot slipped out from under her and she fell, landing on her buttocks and right side. She received medical treatment from Dr. Percival C. Smith for nine months following the incident. Dr. Smith, a general practitioner whose practice was limited to internal medicine, testified that he diagnosed her condition as a sprain of the cervical and lumbosacral vertebrae, and contusions of the right thigh and left ankle. He treated Mrs. Clark with diathermy on twenty-four occasions. He stated that Mrs. Clark had a history of poliomyelitis when she was a child as a result of which her right leg was one inch shorter than her left. As a corrective she wore special shoes. Lastly, it was Dr. Smith's opinion that Mrs. Clark would have a permanent partial disability of the spine due to her injuries.

Dr. Edward F. Wenzlaff, a diplomate of the National Board of Medical Examiners and the American Board of Orthopedic Surgery, testified on behalf of Penn. He related, without objection, the past history as taken from Mrs. Clark during his examination. This included the reference to polio, the manner in which she sustained her current injuries, and her complaints concerning such injuries. He then testified as to his physical examination and the results of his x-rays. His diagnosis was: 'Status-Post poliomyelitis involving the right lower extremity with a drop foot and rather marked, long-standing hypertrophic changes involving primarily the lumbar spine but also involving the cervical and thoracic regions but to a lesser extent.'

Dr. Wenzlaff explained that the hypertrophic changes were 'excessive bone growths usually about joints and they occur to all people in varying degrees with advancing age. They may or may not be symptomatic.' He further stated that they are 'usually associated in advancing age with morning stiffness, perhaps some aching with bad weather, stiffness which appears to resolve itself with increasing activity.' Such hypertrophic changes normally take 'years' to form ('over an extensive period of time'), according to Dr. Wenzlaff.

At this point counsel for Penn attempted to elicit testimony concerning the lack of permanency of any injuries suffered by Mrs. Clark as a result of the fall. A recounting of part of the transcript of testimony demonstrates this effort:

'Q. Doctor, do you have an opinion based on your examination of Mrs. Clark and based-

(The Court) I cannot hear you.

Q.-based on your examination of Mrs. Clark and based on reasonable medical certainty as to whether Mrs. Clark suffered any permanent disability to her back as a result of her fall of October 29, 1965?

(Mr. Foley) Objection.

(The Court) I will sustain the objection.

Q. Doctor, can you state in competent, medical terms and based on reasonable medical certainty whether Mrs. Clark suffered any permanent injury to her back as a result of a fall on October 29, 1965?

(Mr. Foley) Objection.

(The Court) I will have to sustain it. You have to put a hypothetical question to the Doctor.

Q. Doctor, assuming that Mrs. Clark fell on October 29, 1965, landing on her buttock and on her right side and suffering a, I believe it was diagnosed as a sprain to that portion of her back, an injury, and the symptoms being pain in the upper and the lower back region and assuming that as a result of that fall, she received treatment, do you have an opinion as to whether or not she suffered permanent disability?

(Mr. Foley) Objection.

(The Court) Sustained.

(Mr. Bouse) May we approach the Bench, Your Honor?

(The Court) Yes.

(Bench Conference)

Q. Doctor, assuming that Mrs. Clark has worked for a period of thirty years without any indication of any problems to her back and that she was employed as, all that time, as a domestic and as a practical nurse and which did involve lifting in her work and assuming that she testified that prior to October 29, 1965, never had any problems with her back, that her general health was very good, and assuming that she did in fact fall on October 29, 1965, and landed on her buttock and her right side and as a result thereof suffered a sprain of the back, now based on all of this, all these facts, do you have an opinion as to whether or not Mrs. Clark suffered any permanent disability to her back?

(Mr. Foley) Objection.

(The Court) Sustained.

Q. I will give it one more try, Doctor. Assuming that, again, that Mrs. Clark worked for thirty years without any difficulty to her back, her work including lifting and a domestic and a practical nurse, and she didn't have any complaints about her back for that period of thirty years, classified her health as very good, and that on October 29, 1965, she fell, landing on her buttock and right side and that as a result thereof she had complaints of pains in her back, of her shoulders, thighs, radiating down her arms, assuming that it was diagnosed to be a sprain, do you have an opinion based upon your examination of Mrs. Clark on December 27, 1967, taking into consideration all the aforegoing facts as to whether or not she suffered any permanent disability to her back?

(Mr. Foley) Objection.

(The Court) I will sustain the objection.'

No proffer was made as to what the testimony of Dr. Wenzlaff would have been regarding such permanency, nor was there other evidence produced in the case regarding lack of permanent injury. It is apparent from the lower court's rulings that the objections to the questions were sustained in the belief that an examining doctor may not express an opinion unless it is in response to a hypothetical question. As stated in Riddle v. Dickens, 241 Md. 579, 581, 217 A.2d 304, 306 (1966):

'In order to establish a diagnosis or prognosis an examining doctor may rely on statements, pathologically germane, given to him by the patient, but if he is to testify as to a causal relationship he must do so in response to a hypothetical question.'

In Parker v. State, 189 Md. 244, 55 A.2d 784 (1947), the case history of the plaintiff as related to the treating doctor was considered admissible, while the case history as related to an examining physician, was not. The distinction was predicated upon the status of the one being examined as patient vis-a-vis litigant. As a patient, he is apt to describe his pains and sufferings in a truthfull manner. As a litigant, somewhat different considerations may enter and the probability of truthfulness is lessened.

In this case, however, not only the past history of Mrs. Clark, but also her complaints regarding the injuries suffered as a result of the fall, came in without objection. In Waxter v. Mindel, 200 Md. 367, 379, 89 A.2d 599, 605 (1952), it was stated:

'The appellee claims that this testimony was merely hearsay and therefore not admissible. However, no objection was offered to this testimony. As this testimony,...