Tucker v. Blackburn

CLARK, Judge. Plaintiff contended and sought to establish the causal connection between the injuries sustained in the collision of 24 January 1973 and her heart condition by the testimony of Dr. Earl Watts, who first saw and examined her on 7 March 1974, almost fourteen months after the collision. He testified that during her first visit to him, he asked her for her medical his [457] tory, and she told him about the collision and her injuries. The trial court then instructed the jury to consider this medical history for corroborative purposes only, and plaintiff assigns as error this instruction. Declarations concerning a past condition are no more trustworthy than any other hearsay statements, and hence are not admissible. 1 Stansbury, N. C. Evidence 2d, (Brandis rev. 1973), § 161. In Moore v. Drug Co., 206 N.C. 711, 175 S.E. 96 (1934), the court approved, as an exception to the hearsay rule, the physician’s testimony as to what the patient told him about present pain and when the pain began. But Moore is not authority for the admission of a patient’s statement to the physician witness of his medical history in general. A person’s statement of present pain and suffering, due to a high degree of trustworthiness, to either the physician or lay witness is admissible as substantive evidence. See, 13 N. C. L. Rev. 228 (1935). In our opinion, Moore extended this rule only to include a statement to the treating physician as to the time when symptoms now present (bodily feeling) began. Neither could the hearsay statement of the plaintiff to the physician witness be admitted as substantive evidence as a basis for his expert opinion. Todd v. Watts, 269 N.C. 417, 152 S.E. 2d 448 (1967). When the facts are not within the knowledge of the witness himself, the opinion of the expert must be upon facts supported by the evidence, stated in a proper hypothetical question. If the expert witness has personal knowledge of some of the facts, but not all, a combination of these two methods may be employed. Cogdill v. Highway Comm., 279 N.C. 313, 182 S.E. 2d 373 (1971). But see 46 N. C. L. Rev. 960 (1968), in which it is stated that other courts are beginning to adopt the view that a patient’s statements to his treating physician of past symptoms is admissible as substantive evidence. In this case, though the trial court instructed the jury to consider the evidence of plaintiff’s statement of medical history to her physician for corroborative purposes only, Dr. Watts was permitted to testify that, based on plaintiff’s statement of medical history and his examination, “In my opinion the myocardial infarction . . . could well have been precipitated as a result of the injuries sustained in the automobile accident. ... ” The admission of this evidence, not in response to a hypothetical question and objected to by defendant, was error, violating the rules stated in Todd and Cogdill, supra. This error, [458] beneficial to plaintiff, was negated by the jury. And if the hearsay statement of the patient to his physician had been admissible, it would have been admissible for the purpose of explaining the physician’s opinion. The plaintiff has no cause to complain. The hearsay statement of the plaintiff to her physician as to past symptoms was erroneously admitted in evidence as a basis for the physician’s opinion that there was a causal connection between her heart condition and the collision. But the jury was not compelled to find, and apparently did not find, from this evidence and by its greater weight that plaintiff’s heart condition, with the medical expenses incurred in the treatment thereof, was proximately caused by the collision. We have carefully examined plaintiff’s other assignments of error and find them to be without merit. The judgment is Affirmed. Judges Vaughn and Martin concur.