Wilhelm v. State Traffic Safety Commission

• Decision Date: 21 November 1962
• Docket Number: No. 67,67
• Citation: 185 A.2d 715,230 Md. 91
• Parties: Grace WILHELM et vir v. STATE of Maryland TRAFFIC SAFETY COMMISSION et al., etc.
• Court: Maryland Court of Appeals

Page 91

230 Md. 91

185 A.2d 715

Grace WILHELM et vir v. STATE of Maryland TRAFFIC SAFETY COMMISSION et al., etc.

No. 67.

Court of Appeals of Maryland.

Nov. 21, 1962.

Fred Kolodner, Baltimore (Irving B. Klitzner, Ginsberg & Ginsberg and Hyman Ginsberg, Baltimore, on the brief), for appellants.

William B. Somerville, Baltimore (J. Kemp Bartlett, III, Bartlett & Hicks and Smith, Somerville & Case, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.

PRESCOTT, Judge.

Alleging that certain errors committed by the trial court reduced the amounts of the jury verdicts obtained by them, the appellants, a husband and wife had obtained judgments against the appellee for the negligent injury of the wife, appeal here.

The questions raised will be considered under five headings: (1) Did the trial court err in refusing to permit a psychiatrist, who was not employed to treat or to prescribe treatment for the wife but for the purpose of examination only, to relate the history given him by the wife?; (2) Did the trial court err in instructing the jury that there was no legally sufficient evidence to show that certain of the wife's alleged complaints resulted from the accident?; (3) Was the trial court in error when it failed to instruct the jury specifically in regard to the loss of consortium by the husband?; (4) Did the court commit prejudicial error in refusing to instruct the jury that, in arriving at the loss of the wife's services by the husband, they could consider 'past, present and future' loss of said services?; and (5) Did the court err in instructing the jury there was no legally sufficient evidence to show disfigurement by loss of pigmentation in the skin?

On May 2, 1959, at about 9:15 A.M., the appellant, Grace Wilhelm, was sitting on the front seat of her husband's Cadillac, which was parked on the north side of Chesterfield Avenue in Baltimore City. The appellee was operating another automobile, which was approaching her from the rear. Because of the presence of some small children and a dog, he drove near the vehicles parked to his right. He applied his brakes and apparently veered slightly to his right thereby striking the left front fender of a Buick automobile, which was parked on the same side of the street as, and to the rear of, the Cadillac, and the left rear fender of the Cadillac.

Following the collision, Mrs. Wilhelm was taken to the Union Memorial Hospital, where x-rays were taken. This hospital report was read into evidence by the appellants' attorney and showed:

'Patient was involved in auto accident. Was sitting in car. Was hit from behind. Her neck jerked backwards. No nausea, vomiting, no numbness of extremities. Neck very painful in rotation. Palpation of cervical spine not contributory. Sounds to be muscular. Impression: Spasm of cervical spine.'

She remained in the hospital for approximately an hour and a half, and was given some prescriptions to have filled. Thereafter, she visited many doctors (including a dermatologist, orthopedic surgeons, three gynecologists, and a psychiatrist) on numerous occasions. It would unduly prolong this opinion and accomplish no desirable purpose to detail the numerous visits to the doctors and their findings. It will suffice to outline some of the doctors' conclusions and her treatments and complaints, supplementing facts in the consideration of the points raised when necessary.

Her first orthopedic surgeon diagnosed her case as a severe whiplash sprain of the neck and of the back. He ordered her to enter the hospital, where, at the doctor's direction, traction was applied and she was ordered to wear a supportive corset and neck collar. She complained of severe pains in her neck and back. After a period of time, her doctors felt that she was better, but she continued to complain of pains and other ailments, which the doctors could not relate to the accident.

I

Doctor Rothstein, a psychiatrist, was called to the witness stand by the appellants. The appellee, Paul Edward Burke, objected to his reciting the history he had obtained from the wife when he examined her. The doctor testified that he did not treat her, and there was no attempt made to show that he was employed to recommend treatment of her by her other physicians Cf. Yellow Cab Co. v. Hicks, 224 Md. 563, 168 A.2d 501. This Court has consistently and repeatedly recognized the principle that a non-treating physician may not relate the history given to him by a litigant. Parker v. State, 189 Md. 244, 55 A.2d 784; Francies v. DeBaugh, 194 Md. 448, 71 A.2d 455; Wolfinger v. Frey, 223 Md. 184, 162 A.2d 745. And in Connor v. State, 225 Md. 543, 171 A.2d 699, this Court, in an opinion by Judge Horney, flatly held that this rule applied to psychiatrists. In addition, appellants admit that Dr. Rothstein would have repeated 'the same history which was given by Dr. Filtzer and Dr. Jones [appellants' witnesses who had already testified]'; hence, if the doctor's opinion were desired, there is no apparent reason for not having asked him a hypothetical question. There was no error here.

II

The trial judge instructed the jury that there was no legally sufficient evidence to show (a) that the wife's alleged 'psychiatric involvement, psychosomatic factors, or mental state,' or (b) that abdominal or back pains associated with her menses, were the result of the accident of May 2, 1959; consequently the jury was not to consider these factors in estimating damages.

The evidence with reference to (a) was to the following effect: that after treatment following the accident on May 2nd, the patient seemed to be responding well and recovering from the effects of the accident. On her visits to Dr. Filtzer (her main physician) in August and September she told the doctor that she was 'considerably better,' and his examinations confirmed her statements. She was not nearly so apprehensive as had been noted previously, and, as was the case in all of his examinations, the neurological examination was negative. On October 1st, she stated to the doctor that she had no difficulty with her neck, and only had pain in her back when she romoved her corset. His examination disclosed, with the exception of 'some mild residual symptoms in the back when going without her corset,' a fairly normal person. She returned on October 29th and complained of difficulty with her low back associated with her menstrual period. She was again seen by the doctor on November 11th and 16th of 1959, and on February 1, 1960. In relating what his examination of February 1st disclosed, the doctor, for the first time, said that in his opinion 'her symptoms were obscured by a deep-seated psychological overlay,' without stating when he first came to that conclusion.

Dr. Jones saw the patient on two occasions, November 24, 1959, and on September 20, 1960. He testified, inter alia, that in his opinion 'there is a very profound psychosomatic factor that * * * serves to aggravate or accentuate any true organic cause that this young lady may have for her persistent and prolonged back symptoms,' and that pain produced by such a factor, although imaginary, is disabling.

A 'psychological overlay' and a 'psychosomatic factor,' as used here (when stripped of their elaborate 'foliage' of technical medical language) mean about one and the same thing; namely that, due to emotional disturbances, the patient's symptoms, on an unconscious basis, are grossly exaggerated instead of being prompted by actual organic ailments alone. It must be noted that neither of the doctors testified that the accident caused, produced or precipitated any emotional involvement, neurosis or other psychological disorder in the appellant.

With reference to (b), the abdominal and back pains that the wife associated with her menstrual periods, they seem to have been first reported to Dr. Filtzer on October 29, 1959, and the complaint related to the menstrual period that occurred about the middle of that month. The doctor examined her quite a number of times thereafter. He 'could not explain the flare up in back pains associated with her memstrual period'; he could not 'correlate [the physical findings] to her menstrual period'; the relationship of her back difficulty with her menstrual period was 'something [he] had never seen or heard of before'; and he did not know the cause of her continued abdominal complaints. He referred her to a gynecologist.

She saw three of them. They did not testify, but the appellants brought out the conclusions of two of them, Drs. Weinberg and Galvin, when Dr. Filtzer was testifying. Dr. Weinberg was unable to explain the association of the wife's back difficulty with her menstrual cycle. Dr. Galvin could find nothing abnormal in his examinations, and he could not account for her back and abdominal pains associated with her memstrual periods.

Dr. Jones, the other orthopedic specialist called by the appellants, testified that he did not believe there could be or was, any connection between the abdominal pains complained of and the accident.

Upon the above facts, the appellants contend that the question of causal connection between the accident and the wife's disabilities named under this heading should have been submitted to the jury. The appellee, on the other hand, claims that said disabilities were of such a complex nature that the causes thereof did not relate to matters of common knowledge among laymen, and, therefore, called for expert testimony upon the question of causal connection.

There are, unquestionably, many occasions where the causal connection between a defendant's negligence and a disability claimed by a plaintiff does not need to be established by expert testimony. Particularly is this true when the disability develops coincidentally with, or within a reasonable time after, the negligent act, or where the causal connection is clearly apparent from the illness itself and the...