Wolfinger v. Frey

• Decision Date: 18 July 1960
• Docket Number: No. 248,248
• Citation: 162 A.2d 745,223 Md. 184
• Parties: Earl WOLFINGER v. Sara Lucille FREY et al.
• Court: Maryland Court of Appeals

Page 184

223 Md. 184

162 A.2d 745

Earl WOLFINGER v.Sara Lucille FREY et al.

No. 248.

Court of Appeals of Maryland.

July 18, 1960.

E. Stuart Bushong, Hagerstown (Lane, Bushong, & Byron, Hagerstown, and Gunter & Geppert and William H. Geppert, Cumberland, on the brief), for appellant.

Ernest V. Wachs, Hagerstown, for appellees.

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

BRUNE, Chief Judge.

The defendant, Earl Wolfinger appeals from judgments entered on separate verdicts in favor of the plaintiff, Sara Lucille Frey, for $5,000 and in favor of the plaintiff, James Frey, for $2,500 for damages resulting from an automobile collision which occurred on August 25, 1958.James Frey was the owner and operator of one automobile, and his wife, Sara Lucille Frey, was a passenger in his car.The defendant was the owner and operator of the other car.While the Frey car was stopped for a red traffic light at a street intersection in Hagerstown, the Wolfinger car, due to a failure of brakes, rammed into it from the rear.The two suits by the Freys against Wolfinger--the wife's for personal injuries and the husband's for loss of the wife's services, for hospital and medical expenses and for damage to his automobile--were consolidated for trial and were submitted on the same record, briefs and argument in this Court.

On this appeal it is not denied that the defendant was at fault in the collision and hence liable for some damages.Mrs. Frey's examining physician, Dr. Lewis Brings, gave his opinion that she was suffering from cystitis and trigonitis and that, following the accident, the condition 'flared up' and she developed some pyelitis and had a twenty per cent partial permanent disability as a result of her chronic pyelitis.The chief and underlying issue in the case is whether or not her condition was caused by a traumatic injury to the kidney sustained as a result of the collision.The plaintiffs' contentions on this question rest largely on the opinion of Dr. Lewis Brings, Mrs. Frey's examining physician, that it was so caused.

The defendant-appellant claims that the examining physician should not have been permitted to testify with regard to the cause or extent of her disability because, in doing so, he relied in part (a) upon the case history given him by the injured plaintiff; (b) that for the same reason and because of alleged defects in a hypothetical question he should not have been permitted to state his opinion in response to that question with regard to the cause of her ailment; and (c) that because of the absence of proper proof of causation, evidence as to damages claimed to have been sustained as a result of the collision was improperly admitted.The defendant made appropriate objections to the admission of the above testimony and also offered motions to strike and a prayer presenting his theory, which was refused.

Mrs. Frey testified that just before the accident she had been sitting more or less sideways on the front seat of the car with her back to the door and that as a result of the collision she was thrown out of the seat, and that her knee and forehead struck the dash and her back in the region of the right kidney struck the handle of the right front door.She was on her way to work at the time of the accident and she did work that afternoon, but was unable to continue her scheduled work that evening.She went home and summoned her family physician.He gave her a heat and vibration treatment.The next morning, when she arose, she found blood in her urine, which was the first time in her life that she had encountered such a condition.She again consulted her family physician.He apparently did not, at that time, suggest that she consult any other doctor, but continued heat and vibration treatment.Blood in the urine continued intermittently for nearly a month.Mrs. Frey's family physician then suggested that she see a gynecologist, and she did so.This doctor, finding no gynecological cause for her condition, referred her to a urologist, Dr. Crisp, whom she first saw on September 24, 1958.

Dr. Crisp sent Mrs. Frey to the Washington County Hospital for the purpose of making cystoscopic and pyelographic examinations and tests.She remained five days.Subsequently, when she had a urine retention, she was obliged to reenter the hospital where she was catheterized and given medication during another five-day period.Thereafter another series of urological examination were made.She then returned to her employment and worked fairly regularly for the next six months.During this period she consulted and was also treated by two orthopedic surgeons.

At the trial, after both of the plaintiffs had testified, ¹ a general practitioner, Dr. Lewis Brings, with thirty-five years' experience, was called to testify as a medical expert.He had graduated from the University of Vienna in 1925; was an intern and resident doctor in different hospitals in Vienna from 1925 to 1938; came to the United States in 1939 and had practiced in Cresaptown and Cumberland ever since.He had had occasion to treat patients suffering with kidney and bladder ailments fairly frequently--his testimony was that he examined patients with similar conditions 'every month.'Mrs. Frey consulted Dr. Brings and was examined by him not for purposes of treatment, but with a view to his testifying in this case.His opinion was that her condition was caused by the collision.There was some difference of opinion between Dr. Brings and Dr. Crisp, who was called as a witness by the defendant; but Dr. Crisp admitted that it was possible that the blow to the kidney could have caused the condition.

The defendant points out that Dr. Brings was a general practitioner and not a specialist in urology.He then contends that '[w]ithout taking into consideration the plaintiff's [Mrs. Frey's] case history, he[Dr. Brings] was totally unqualified to express any opinion as to casual relationship between the accident and the plaintiff's condition fifteen months later.'We may assume, at least for the purposes of this case, the correctness of the conclusion stated in this quoted contention, but that does not establish the soundness of the premise upon which it is founded--that Dr. Brings did not have Mrs. Frey's case history before him or at least did not have it in any form in which he could make use of it in giving his opinion.

Before going into that matter we shall refer briefly to one contention which the defendant apparently raised in the trial court but which we do not understand to be pressed on appeal, and which seems to be abandoned in the light of the contention above stated.This contention was that because Dr. Brings was a general practitioner and not a specialist, he was not qualified to testify at all as an expert on the cause of Mrs. Frey's illness.Because of the importance in this case of Dr. Bring's testimony, we may observe that we see no validity to a contention that unless he were a specialist in the medical field involved he could not testify to his opinion, basing it upon a case history and his examination of the injured person.²

Dr. Brings testified that he had examined Mrs. Frey, that he had taken a case history from her, that he had examined her hospital records, and that in his examination of Mrs. Frey, apart from a legraising test, he had made no tests or urological examinations.He was properly not permitted to testify with regard to, or on the basis of, the case history given him by Mrs. Frey.Parker v. State, 189 Md. 244, 55 A.2d 784.A like ruling was, however, made, as a result of objections interposed by the defendant, which prevented Dr. Brings from testifying on the basis of anything contained in the hospital records.This ruling excluded not only the case history contained in those records, but also the results of the several urological tests, including pyelograms and the results of cystographic examinations.It likewise excluded records of her prior hospitalizations, which pertained to the birth of Mrs. Frey's child by a Caesarean section and to gynecological operations both before and after that event.

The total exclusion of the hospital records from consideration by Dr. Brings as a foundation for his opinion was clearly erroneous.These records were admissible in evidence, including any case history therein contained, at least so far as pathologically germane.Code (1957), art. 35, § 59;Wickman v. Bohle, 173 Md. 694, 196 A. 326;Bethlehem-Sparrows Point Shipyard, Inc. v. Scherpenisse, 187 Md. 375, 50 A.2d 256;Lee v. Housing Authority, 203 Md. 453, 101 A.2d 832;Shirks Motor Express v. Oxenham, 204 Md. 626, 106 A.2d 46.No such question is presented as in West v. Fidelity-Baltimore National Bank, 219 Md. 258, 147 A.2d 859; and the limitation stated in Old v. Cooney Detective Agency, 215 Md. 517, 138 A.2d 889, that the history, to be admissible, must be 'pathologically germane,' would surely not bar the case history pertinent to the hospitalizations which followed the collision here involved.The records as to injuries sustained in the accident would seem to fall squarely within the holding in Scott v. James Gibbons Co., 192 Md. 319, 330, 64 A.2d 117.

We also think it clear that an examining physician, such as Dr. Brings, in formulating and stating his opinion, could make use of the history and the objective results of laboratory tests included in the hospital records, and that they could be used as a basis for a hypothetical question.Thompson v. Standard Wholesale Phosphate & Acid Works, Inc., 178 Md. 305, 318-319, 13 A.2d 328;Twombley v. Fuller Brush Co., 221 Md. 476, 485-486, 158 A.2d 110.Cf.Ihrie v. Anthony, 205 Md. 296, 309, 107 A.2d 104;Williams v. Dawidowicz, 209 Md. 77, 86, 120 A.2d 399.

It is, we think, a matter of common knowledge and experience (and, we may add, of common sense), of which we may take judicial notice, that hospital records do contain, among...