Woods v. Brumlop

Decision Date04 October 1962
Docket NumberNo. 6913,6913
PartiesBeulah Anne WOODS, Plaintiff-Appellee, v. Elsa A. BRUMLOP, Defendant-Appellant.
CourtNew Mexico Supreme Court

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Adams & Calkins, Albuquerque, for appellant.

John E. Hall, Albuquerque, for appellee.

NOBLE, Justice.

A jury awarded Beulah Anne Woods $5,889.58 damages against Doctor Brumlop for malpractice, and the decisive question is whether testimony of the plaintiff was admissible as to the cause of a claimed loss of hearing and whether in the absence of medical testimony that the treatment prescribed caused a loss of hearing it should have been submitted to the jury as an element of damages.

The action originally was against Doctor Brumlop and Doctor Gonzales for malpractice. A verdict was directed in favor of Doctor Gonzales, and the case was submitted to the jury against Doctor Brumlop alone.

Plaintiff was referred to Doctor Brumlop for psychiatric treatment by her physician. After consultation and some routine psychiatric treatments, Doctor Brumlop advised that plaintiff should submit to electroshock treatments. Doctor Brumlop refused to give the treatments herself and suggested that plaintiff enter the New Mexico Mental Hospital for the treatments. After further consultations with her original physician, who likewise recommended the treatments, plaintiff entered the State Hospital where the electroshock treatments were administered by Doctor Gonzales. Doctor Gonzales, without consultation or recommendation by Doctor Brumlop, but upon his own diagnosis, determined to administer the electroshock treatments. Plaintiff claims to have received injuries consisting of a compression fracture to her spine and loss of hearing as a result of the treatments.

Several grounds are urged for reversal. We consider submission of the question of a claimed loss of hearing and the cost of a hearing aid as elements of damage caused by the electroshock treatments to be decisive and, therefore, consider it first.

Perhaps we should point out at the outset that plaintiff's claim for damages against defendant Brumlop, who did not administer the treatments which caused her injury, is based upon two theories. First, the doctor failed to inform and advise plaintiff of the dangers inherent in the electroshock treatments. Secondly, the doctor, upon direct inquiry by plaintiff, told her that no harmful results could occur, knowing that statement to be untrue; that the plaintiff had no knowledge of such and that this resulted in plaintiff having no basis upon which to predicate her consent to the treatments. We shall discuss the denial of a motion for directed verdict later.

As we have pointed out, plaintiff claimed as one of the injuries sustained by her as a result of the treatments, a loss of hearing and $175.00 as the expense of a hearing aid. The particular complaint is that the causal relation between the claimed loss of hearing and the treatment prescribed was not established by competent evidence. There was no medical testimony establishing the causal relationship, and it is contended that the lay testimony of plaintiff as to the cause of a physical condition is inadmissible. The evidence was objected to at the time it was offered and was the subject of a motion to strike the testimony and to not permit the jury to consider loss of hearing and the cost of the hearing aid as an element of damage, made at the conclusion of all the evidence. Denial of the motion is urged as error requiring reversal. We agree that its denial requires a remand for new trial.

The defendant is liable only for injuries inflicted on the plaintiff by reason of the electroshock treatment and is in no way responsible for plaintiff's loss of hearing occasioned by any other means. The burden of proving with reasonable certainty the causal connection between the treatment and plaintiff's loss of hearing rested upon the plaintiff. Hebenstreit v. Atchison, Topeka & Santa Fe Ry., 65 N.M. 301, 336 P.2d 1057, and cases there cited.

The annotator at 66 A.L.R.2d 1127 states the rule as to the admissibility of lay testimony as to the cause of a physical condition as follows:

'* * * where the subject matter is wholly scientific or so far removed from the usual and ordinary experience of the average man that expert knowledge is essential to the formation of an intelligent opinion, only an expert can competently give opinion evidence as to the cause of death, disease, or a physical condition.'

The testimony objected to here was that of plaintiff:

'Q. Now Mrs. Woods, in addition to the pain and discomfort that you had in your back after this first shock treatment was given, did you experience any other physical effects?

'A. The treatment destroyed most of my hearing.'

There was also the admission of the cost of a hearing aid. A medical expert in hearing and ear troubles testified that he had treated plaintiff prior to the shock treatments for inner-ear trouble and had tested her hearing and found her to be hard of hearing. The medical expert, however, testified that in his opinion the cause when he examined her was audiosclorosis. He said that he was unable to form an opinion as to whether shock treatment could result in loss of hearing. The only testimony that such loss of hearing was caused by the stock treatments, therefore, was the lay testimony of plaintiff.

In Pacific Employers Inc. Co. v. Industrial Accident Commission, 47 Cal.App.2d 494, 118 P.2d 334, it was said that the pathological cause of an ailment is a scientific question upon which it is necessary to obtain scientific knowledge and only the opinions of experts are of any value.

In an action for punitive damages for willful and malicious trespass to land, the court in Ruland v. Zenith Const. Co., Okl., 283 P.2d 540, held a husband is incompetent, not being an expert, to testify that his wife became ill, nervous and sick because of the alleged wrongful conduct of the defendant. In a malpractice action against a physician for causing the administration of medicine containing arsenic, it was held in Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493, that the evidence of lay witnesses that they told the plaintiff not to continue to take medicine because it was apparently killing her was properly excluded because it constituted 'nothing more than mere conjecture or surmise * * * as to cause and effect in a field of knowledge in which only an expert could give a competent opinion,' that is, whether the health of plaintiff had been injuriously affected by taking the medicine.

The following exchange between the court and counsel for plaintiff at the time objection was made to submitting the issue of loss of hearing as an element of damage indicates that counsel for plaintiff admitted that a causal connection had not been medically established. It was contended that the issue should remain because otherwise it would affect the credibility of the testimony of plaintiff.

'The Court: Mr. Hall, it is the Court's understanding from your statements that you have given up your claim of loss of hearing due to the electroshock treatments.

'Mr. Hall: I didn't make that as an official part of the record; however I think I indicated to the Court during the recess period that we had been unable medically to connect it up as being any loss. I would like to be in a position to argue the matter [to] the jury, however, and retain it in the case, in order to explain, because it is going to be raised on the credibility of the witness. There are degrees of loss of hearing and she may have contributed more of a loss than actually occurred after it, or it may have been or may not have been due to the electroshock treatment and all that. I would like to keep it in the case, although I am inclined to believe that the Jury would be justified in throwing it out because we haven't medically connected it up.'

In Hebenstreit v. Atchison, Topeka & Santa Fe Ry., supra, the medical expert testified that it would be a matter of pure speculation to state the extent of aggravation caused by the trauma. This court there said:

'Uncertainty as to the amount of damages one may be entitled to receive will not prevent a recovery, but it is well settled that a judgment based on conjecture, surmise or speculation can not be sustained, and that is what we have here.

'If Dr. Tanney with his superior knowledge of the condition of Mrs. Hebenstreit through the years could not give an approximation of the extent of the aggravation or acceleratoin, we are at a loss to understand how the members of the jury could do so.'

We think these decisions demonstrate that the cause and effect of a physical condition lies in a field of knowledge in which only a medical expert can give a competent opinion. Not having show a peculiar knowledge, the plaintiff's testimony as to the cause of her loss of hearing was inadmissible. There being no medical testimony to support her contention that loss of hearing was caused by the treatments, and in view of the testimony of the medical expert in this case, we feel that the jury could have had no basis other than conjecture, surmise or speculation upon which to consider whether plaintiff's claimed loss of hearing was caused by the shock treatments.

Plaintiff now argues that it does not appear that loss of hearing was an issue submitted to the jury. We cannot agree. The court instructed the jury as a part of instruction No....

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    ...a plaintiff must introduce expert medical testimony that establishes causation")(quoting Woods v. Brumlop, 1962-NMSC-133, ¶ 15, 71 N.M. 221, 377 P.2d 520, 523 and citing O'Banion v. Owens Corning Fiberglass Corp., 968 F.2d 1011, 1013 (10th Cir. 1992)) (affirming an order that excluded evide......
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