Devore v. Schaffer

Mulroney, J.

(dissenting) — I agree with all but Divisions I and II of the majority opinion but dissent from those divisions and the reversal.

The specific error which the majority finds in Divisions I and II is in that part of the admonition that told the jury to disregard the doctor’s opinion testimony unless based on the doctor’s physical examination. The majority holds neither the court nor the jury could determine what the doctor’s opinion would be “without reference to what plaintiff told him.” I do not understand the majority to hold the admonition and instruc *1026 tion were insufficient or confusing, in so far as they withdraw ,any evidence of statements that plaintiff made to the doctor, which the doctor related on the witness stand. It was merely the doctor’s opinion testimony which the majority states could not be separated as to the doctor’s opinion based on his examination apart from the history which plaintiff gave the doctor.

Obviously the majority would be wrong if no prejudice resulted from the trial court’s admission of the evidence of the opinion of the examining physician. So too would the majority be wrong if, under the record here, there was no error in the admission of such opinion testimony. There would be no occasion to examine the sufficiency of the admonition of the court with respect to the withdrawal of the opinion testimony to see if it cured an error in admitting such testimony, if in fact no prejudicial error was committed in admitting the testimony.

I. The record shows the doctor did not repeat any statements which plaintiff might have made to him concerning how the accident happened. He did relate what plaintiff told him as to the body bruises, contusions, head injuries and fractures that plaintiff suffered in the accident, as well as other, what the majority opinion calls “clinical history”, which must have been told him by plaintiff. This was not offered as substantive proof of the facts. State v. Blydenburg, 135 Iowa 264 , 112 N.W. 634 , 14 Ann. Cas. 443; DeLong v. State Highway Commission, 229 Iowa 700 , 295 N.W. 91 . I think the evidence would be admissible for the limited purpose of showing the reasons on which the doctor’s opinion w.as based. But, for the purpose of argument, we‘ will assume the court’s ruling striking this evidence was correct. And we will assume the doctor’s opinion evidence was in part based on this stricken clinical history.

No possible prejudice resulted from the admission of the doctor’s opinion testimony, based in part on this “clinical history” because there was abundant other evidence, almost entirely undisputed, to establish everything the doctor testified plaintiff told him. It need not be related here. It is sufficient to say it was all firmly established in all essential details by the testimony of plaintiff and his own doctor who had treated him as well as by other witnesses.

*1027 How could prejudice result from the partial use of this “clinical history” as a basis for the doctor’s opinion as to plaintiff’s chances of recovery? Clearly if the doctor had been asked to state his opinion in answer to a hypothetical question that hypothesized all of this “clinical history” which was established by competent evidence, it would have been proper. What difference does it make whether the doctor bases his opinion in part on a clinical history, related to him by plaintiff or established by other testimony, if the history is the same? The general rule that such a medical expert may not base an opinion on the history as received from a patient can be admitted. And in this connection it is well to note the word “history” in the rule “covers the statements of a patient to the doctor about matters in the past, not present complaints.” Oesterle v. Kroger Grocery & Baking Co., 346 Mo. 321, 326 , 141 S.W.2d 780, 782 . The reason for the rule is that the doctor should not be allowed to base his opinion on facts not established by competent evidence — and the history when supplied by the patient to the doctor is hearsay and incompetent. The reason for the application of the rule vanishes or at 'least no prejudice results when the history related to the doctor by the patient is established by other competent evidence.

In the last cited case the opinion states the general rule that the “history is within the hearsay rule and therefore is not a proper foundation for an opinion which must be based on competent evidence.” But the opinion goes on to state: “If, however, the so-called ‘history’ is made up of facts which in themselves are competent evidence, and which are in evidence, then any objection to the use of such ‘history’ must fall.”

In Little v. Maxwell, 183 Iowa 164, 169 , 166 N.W. 760 , 762, the physical examination' made by the doctors for the purpose of testifying was supplemented by information obtained from questions they asked plaintiff and her father touching her injuries. We held since “each of the several witnesses described plaintiff’s condition, and some of the conclusions expressed by them were not unfavorable to the defendant, and, on the whole, * # # m prejudice resulted.”

The instant case is a much stronger case for lack of prejudice than the Little case. Here, as in the Little case, the *1028 doctor at one place in his testimony described in detail what he found when he made the physical examination, and parts of his testimony might be considered favorable to the defendants, but here there is the added fact that it cannot be said his opinion was based on facts that were not in evidence.

I would hold no prejudice resulted in the court’s admission of the evidence of the doctor’s opinion and consequently no reversible error would result if the admonition failed to cure any possible error.

II. The second proposition is whether, under the record here, it was error at all for the trial court to admit the doctor’s opinion testimony. As previously stated it would be wrong to reverse because of ,a confusing admonition or insufficient instruction, withdrawing the opinion evidence, when the admission of the evidence, under the record presented, was not erroneous.

The majority opinion cites two cases in Division I as support for the conclusion that it was error to allow the evidence of the statements plaintiff made to the doctor. They are Mitchell v. Montgomery Ward & Co., 226 Iowa 956 , 285 N.W. 187 , and Pierce v. Heusinkveld, 234 Iowa 1348 , 15 N.W.2d 275 . We recently had occasion to state the rule laid down by these two cases. In State v. Beckwith (Hays, J.) 243 Iowa 841, 849 , 53 N.W.2d 867, 871 , we stated:

“In these cases [the two cited above] the objection was not to the opinion given but to specific statements made by the doctor as the basis for the opinion. They were being offered as substantive proof of the facts- stated and held inadmissible as hearsay and self-serving. See also DeLong v. Iowa State Highway Comm., 229 Iowa 700 , 295 N.W. 91 .”

As applied to this case the cited authorites would support the rule that the statements made to the doctor cannot be related by the doctor as substantive proof of facts contained therein. The only other case cited on this point is in Division II of the majority opinion, Switzer v. Baker, 178 Iowa 1063, 1079 , 160 N.W. 372 , 377. This is an opinion by Justice Weaver, concurred in by three other justices, where a doctor, who had never treated the plaintiff, testified as an expert. He had never made any physical' examination of the plaintiff and his opinion was based *1029 entirely on information he gained from the plaintiff and other persons. The opinion holds it was error to allow the doctor’s opinion, but the opinion states: “It should be added that some members of the court are of the opinion that a medical expert may properly testify to his diagnosis based upon the history of the case as made to him by the patient, but may not found his opinion upon statements to him by third persons.”

It is probably unnecessary to argue that the doctor here did not relate any objectionable statements made to him. If he did, the evidence was withdrawn by the court in the admonition and instruction. The court went further than he should for he struck “all statements made by the plaintiff to Doctor Schwertley regarding the history of his case and his condition.” (Italics supplied.)

The jury would have no trouble following that portion of the admonition. The majority holds the confusion arose in the last part of the admonition where the court told the jury “not to consider any opinions of the doctor except that which was the result of and based upon his physical examination of the plaintiff.” The majority quotes the one opinion of the doctor which, by the question asked, could be based partly on the history. There was no objection to this question. I do not think under the record here it can be said there was a so-called standing objection. But assume there was a proper standing objection, the recent case of State v. Beckwith, supra, is direct authority for the proposition that the opinion was proper. In that case (at page 848 of 243 Iowa) the doctor who had examined Beck-with in order to qualify as a witness was asked for his opinion as to whether there was any evidence of mental disease or mental unsoundness, on June 22, 1949. It was objected to on the grounds that his opinion was based “partially on personal examination .and partially upon hearsay * * * upon a personal history of the defendant taken by the doctor himself * * The doctor’s answer was: “ ‘When I examined him on July 7th [1949] there was no evidence of mental disease, and from the history given by the patient * * * and other evidence I assumed there was none on June 22. That’s all I can say is that there was none on July 7th, and there was no indication that there *1030 was any on June 22, but-. There was no evidence of mental disease.’ ”

We held in the above case the opinion testimony “was proper” and found no error in its reception. And we held the Switzer case was support for our holding — the lone authority which the majority now cites as authority for the opposite conclusion. I would hold no error was committed by the trial court in the reception of the doctor’s opinion testimony and therefore defendant secured more than he was entitled to when the court gave the admonition and the instruction. I feel the majority has fastened upon a minor, trivial incident in the trial on which to reverse. This is borne out by the fact the point is not argued at all. Counsel’s brief point is that it was error to allow the doctor to “repeat the statements made to him by plaintiff concerning how his injuries were received when.the doctor did not treat plaintiff as a patient, but merely examined him for the purpose of being able to testify as an expert witness.” The entire argument under this brief point is that the court committed error in allowing the doctor to relate statements plaintiff made to him, and, the prejudice in such admission was so great that it could not be taken out of the minds of the jurors by a subsequent withdrawal. I do not think the doctor did repeat statements that plaintiff made on how the .accident happened but in any event the reversal is not on the basis the admonition was insufficient in withdrawing statements. Nowhere does defendant argue the withdrawal of the opinion testimony was insufficient or confusing. It could well be argued the jury heeded the admonition and gave no consideration to the doctor’s opinion since they were told not to consider any opinion “except that * * * based upon * * * physical examination.” The last sentence of the four-page argument under the brief point merely states: “The oral instruction that the court gave was very short and in no way could the jury understand just what was stricken from the record.” This is the only statement in the entire brief which even remotely suggests appellant’s counsel ever thought about the point which the majority now finds was reversible error. The plaintiff received no inkling from this that defendant was contending the admonition was insufficient or confusing in the portion withdrawing the opinion testimony. Plaintiff an *1031 swered tbe argument made and contended the error was not so great that a subsequent withdrawal of testimony would not remove prejudice. Defendant filed a reply and repeated his argument that the withdrawal and admonition would not remove prejudice but said nothing .at all to the effect that it was insufficient or confusing or that the jury would not be able to follow it — the point which the majority now finds was reversible error. I would affirm.

Gareield, C. J., and Oliver, J., join in this dissent.