Purvis v. Johnson

• Decision Date: 19 June 1968
• Docket Number: No. 14678,14678
• Citation: 430 S.W.2d 226
• Parties: Gladys L. PURVIS et vir, Appellants, v. Clarence JOHNSON, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 226

430 S.W.2d 226

Gladys L. PURVIS et vir, Appellants, v. Clarence JOHNSON, Appellee.

No. 14678.

Court of Civil Appeals of Texas San Antonio.

June 19, 1968.

Rehearing Denied July 17, 1968.

Hope, Henderson, Hohman & Georges, San Antonio, for appellants.

Beckmann, Stanard, Wood & Vance, Melvin A. Krenek, San Antonio, for appellee.

KLINGEMAN, Justice.

Suit for damages by Gladys L. Purvis, joined by her husband, William L. Purvis, against Clarence Johnson for personal injuries allegedly sustained by her in an automobile collision. The parties will be referred to herein as designated in the trial court. The jury found defendant guilty of acts of primary negligence proximately causing the collision. No acts of negligence were found against plaintiff, but in answer to Special Issue No. 15 inquiring whether plaintiff had sustained a bodily injury as a result of such collision, the jury answered that she did not. Judgment was rendered in accordance with the jury verdict that plaintiff take nothing.

Plaintiff, by her first point of error, asserts that the trial court erred in permitting counsel for the defense on cross-examination of the witness Dr. Warran Ross to exhibit and read to the jury, over objection, a non-authenticated purported written statement by a group of physicians to another group of physicians, attacking the professional and diagnostic ability and integrity of the witness. By her second point, plaintiff contends that the jury's answer to Special Issue No. 15 was contrary to the great weight and preponderance of the evidence, and by her third point asserts that the trial court erred in admitting into evidence hospital records of plaintiff pertaining to previous illnesses, prior injuries, and declarations which were unrelated to and disconnected with any material issue in the case.

Plaintiff was driving home from a baseball game on the evening of September 5, 1966, when her automobile was hit on the left side by an automobile driven by defendant. Plaintiff testified that defendant's automobile was traveling approximately forty miles per hour at such time. Plaintiff was able to drive her automobile home, but that night she was taken to Brooke General Hospital by her husband who was in the military service, where she was examined, X-rayed and discharged that same night. She testified that thereafter her back and left side started hurting her, and that about five days thereafter her left side and left leg became numb. She again went to Brooke General Hospital where she was given further X-rays and some medication for pain. On September 15, 1966, she was examined by Dr. Warran A. Ross, an orthopedic surgeon in Austin, Texas. Plaintiff testified that prior to going to Dr. Ross, she was in constant pain and had reached the stage where she was unable to do her household chores. Dr. Ross continued to treat her up to the time of the trial, a period of approximately eight months. She was given neck braces to wear, medication for pain and muscle spasms, and was advised to use certain rehabilitation exercises. The record discloses that prior to the accident plaintiff worked at intervals as a waitress and as a maid, and plaintiff testified that her earnings when she worked were approximately $40.00 a week. She testified that since the accident she had been unable to do this type of work; that prior to the accident she was able to do all of her household work and since the accident she could not perform heavy tasks connected with such housework; that she suffered pain in her neck, back and left leg. Two of plaintiff's neighbors testified that they had visited in plaintiff's home on numerous occasions, both prior to and after the accident; that prior to the accident she did all of her household work, and since the accident she had been unable to do certain household tasks, such as ironing, mopping, carrying out garbage, etc., and they helped her with her household work on many occasions since the accident. They testified that prior to the accident they had never heard her complain of pain in her back or neck, but since the accident she constantly complained of pain in her back and neck.

Plaintiff's first point of error relates to error of the court in permitting defendant's counsel on cross-examination of Dr. Ross to read certain excerpts from a purported letter or statement from the 'Orthopedic Surgery Section' to the 'Tissue Audit Committee' of the Brackenridge Hospital in Austin, Texas, attacking the professional and diagnostic ability of Dr. Ross.

The pertinent portions of the letter objected to are contained in the following:

'Q All right. Are you aware that this statement was made, 'Dr. Ross' remarks regarding diagnostic * * *' I will have to read a little more than that. 'Even though the clinical picture in low back cases is not always clear cut * * *'

'MR. HOPE: Excuse me, Mr. Krenek. Judge, I don't know by what means this letter--from what source we know not. We don't know whether it is authenticated or what. I don't know where it comes from. The proper predicate hasn't been laid. We want to make an objection to any cross examination from some letter or some memorandum that someone else wrote, which hasn't been authenticated in any way, we object to that line of questions. I mean Mr. Krenek could get a letter from anybody or anyplace, any source, at any time I suppose saying anything. I don't think that is fair to ask the man questions from some letter that someone wrote someone else.

'MR. KRENEK: If the Court please, this bears directly on the Doctor's qualifications and the action by his fellow orthopedic practitioners on the staff of the Brackenridge Hospital. I think I should be allowed to ask him if these were the comments made by the staff in regard to Dr. Ross.

'MR. HOPE: Why don't we bring in the staff, rather than some letter the contents of which we cannot cross examine.

'MR. KRENEK: This is cross examination, if the Court please.

'THE COURT: Overrule the objection.

'MR. Hohman: Note our exception.

'Q (By Mr. Krenek) All right. Doctor, are you aware that this was in the letter, this statement, 'Even though the clinical picture in low back cases is not always clear cut, it was, nevertheless, impressive that Dr. Ross seemed to attach little significance to well recognized patterns of signs and symptoms and how these are related to pathological changes at specific levels and disks in the low back. Since Dr. Ross rarely performs myclograms these patterns should take an added diagnostic importance. Dr. Ross' remarks regarding diagnostic value of such pertinent findings as sensory, reflex, or motor changes were repeatedly vague and very inconsistent at times.' Are you aware that that is part of the letter?

'A If you are reading from that letter, then like I say--in other words, I have to assume that that is what you are reading from, and I have to suppose that that letter was written to who it was addressed to and it was signed by the doctor who signed it, and find out where he got the information that he concluded these things. You would have to ask him, I don't know.

'Q Do you recognize the signature of Dr. R. A. Dennison of the Orthopedic Surgery Section?

'A I wouldn't recognize--I know him, yes.

'Q More pertinent to this case, Doctor, do you know whether this statement was made in the letter, 'In ten of the twenty-eight patients, or thirty-six per cent, there had been previous evaluation by one, or more commonly, a number of competent physicians, orthopedic surgeons, neurosurgeons and psychiatrists. These previous evaluations were disregarded or not alluded to by Dr. Ross despite the fact that in most cases surgery had been considered either contraindicated or not recommended.' Are you aware of that statement?

'A Like I say, I am not--

'MR. HOHMAN: Just a moment. For the record, we want the record to reflect once again that we are objecting because there has been no proper predicate laid.

'THE COURT: Overruled.

'MR. HOHMAN: No relevance or materiality to this case. Note our exception.

'Q (By Mr. Krenek) Doctor, the following recommendation, are you aware that this was the recommendation of the Orthopedic Section, of which you are a member, 'That Dr. Ross be placed on a status of probation regarding low back surgery for an eighteen month period, during which repeated and consecutive review of all previous and subsequent pertinent cases be performed at six month intervals. No immediate disciplinary action is recommended.' Aren't you aware that that was the recommendation?

'A Yes. I stated that there have been no restrictions placed upon my practice of medicine. * * *'

We are of the opinion that it was error to permit the reading of such excerpts from said letter in the cross-examination of Dr. Ross. The effect of allowing those excerpts to be read was to...