# Loper v. Andrews

> Texas Supreme Court · May 25, 1966 · 9 Tex. Sup. Ct. J. 431

URL: https://www.frixlaw.com/law-library/cases/9672381

## Case

- **Full name:** Billy Earl LOPER, Petitioner, v. Lula ANDREWS, Individually and as Next Friend of Charles Andrews, a Minor, Respondent
- **Court:** Texas Supreme Court
- **Decided:** May 25, 1966
- **Citations:** 9 Tex. Sup. Ct. J. 431; 404 S.W.2d 300; 1966 Tex. LEXIS 322
- **Precedential status:** Published
- **Opinion:** Concurrence by Pope
- **Judges:** Steakley, Pope, Smith
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672381

## Opinion text

POPE, Justice
(concurring).
Dr. Hutchings, a member of the hospital staff, examined the injured boy upon request of Dr. Swetland, another staff member. In recording the results of the examination, Dr. Swetland wrote the one sentence which is the subject of this appeal. That sentence was: “This, he (Dr. Hutch- *307 ings) believes, is definitely the result of a fracture of the base of the skull, and some left optic nerve pressure.” As stated in the majority opinion, nothing else in the hospital record was objectionable.
The majority, in holding that opinion testimony should be excluded, has announced a new exclusionary rule with respect to medical opinions. The Court treats expert medical opinion as speculation or conjecture in spite of medical evidence to the contrary. The majority says that because there was a dispute between the doctors who examined the injured boy, the diagnostic entries “necessarily rest largely in expert opinion, speculation or conjecture.”
When a doctor gives his expert opinion about medical causes lawyers and judges, who are not medical experts, are bold indeed to say that the evidence is mere conjecture or speculation. Dr. Swetland’s entry in the hospital records was that Dr. Hutchings “ * * * believes * * * definitely * * * ” that the condition resulted from a fracture of the base of the skull. The evidence did not relate to the future, in which case the doctor would be limited to probabilities in the expression of his opinion. We exclude this evidence though the doctor said, “I definitely believe.” The predicate for admission of this opinion evidence was laid.
The real basis for the exclusion is that the non-expert Court believes that the evidence was speculative. If it be such, Dr. Swetland and Dr. Hutchings did not so state. The Court in this case, and apparently for the future, has committed itself as an overseeing expert to pass upon medical conditions, diseases, treatments, prognoses, and to announce to both the medical and legal professions, which medical opinions are sound and which are conjectural. I would leave this to the doctors. 2 McCormick & Ray, Texas Law of Evidence, § 1427.
I concur in the result.
SMITH, J., joins in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672381. Public record. Not legal advice.