Summary
requiring that expert testimony on the issue of proximate cause between an injury and a physical disability "must be established by the opinion of medical witnesses competent to express such opinion"
Summary of this case from Davison v. Cole Sewell Corp.Opinion
No. 69-437
Decided July 15, 1970.
Evidence — Causal connection between injury and subsequent disability — Medical evidence to establish — Jury question not presented, when.
Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion. In the absence of such medical opinion, it is error to refuse to withdraw that issue from the consideration of the jury.
APPEAL from the Court of Appeals for Huron County.
Plaintiff, a minor, and defendant were involved in a motor vehicle intersection collision on June 4, 1966. In plaintiff's suit for damages for personal injury, brought by his father on his behalf, it was claimed that plaintiff received an injury to his nose, resulting in severe nosebleeds at different times over the next eight months; that these nosebleeds increased in frequency and intensity until terminated by operative procedure on February 27, 1967. This operation was performed by Dr. Baxter. Hospital records containing the history given by plaintiff, the diagnosis ("Deviated Septum, 95% obstruction"), a description of the operation ("submucous resection and Bovie cautery * * * lt. anterior septum"), and the discharge summary were "signed" by rubber stamp (script type letters), "Edward J. Baxter, M.D." The testimony of the hospital librarian was that the hospital records were "kept in the ordinary, and usual, and regular practice of the hospital"; that Dr. Baxter's stamp is "kept in his office," but that she would have no knowledge as to who had applied the stamp on the hospital records.
Dr. Baxter did not testify. The only medical testimony was that of Dr. Sparks. He testified as to the meaning of the words used in the hospital records, "deviated septum," "Bovie cautery," and also testified that he had seen plaintiff twice during the month of December 1966, for nosebleeds; that he then made a diagnosis of "a deviated septum * * * with ulceration of the septum and nosebleed"; and that "an ulceration is an inflamed or broken area, unhealed area in the mucous membrane."
The following questions and answers completed the direct testimony of Dr. Sparks:
"Q. As far as you could ascertain, Doctor, was there any evidence of fracture in the septum?
"A. Well, I don't know whether there was a fracture or not.
"Mr. Hayes: Object to any further answer. He has answered the question.
"Court: He may explain his answer, if he wants to.
"Mr. Hayes: Pardon me?
"Court: He may explain his answer, if he wants to.
"A. As I say, I don't know whether the nose was fractured or not. See, I didn't see him when he was originally injured. The deviated septum was from fracture, but I wouldn't have any idea whether it came from injury or not. I would have no way of telling.
"Q. I see. In your opinion, Doctor, the nosebleed, from which this young man suffered, and I believe it is called `epistaxix,' resulted from the deviated septum, which you saw?
"A. Yes, I feel it came from the deviated septum and ulceration of that septum, yes."
Dr. Sparks was not cross-examined.
The hospital records make reference to an X-ray of plaintiff's nose, taken after the accident, "which showed no fracture." There was evidence that plaintiff, prior to the accident, had nosebleeds on some occasions. Plaintiff's testimony was that at the time of the accident he struck his face on the steering wheel and hit his head on the windshield; that his "lip was bleeding and tore up"; that his nose was "just a little sore, but I didn't notice it right away"; that he was examined by a doctor who "looked at my gum"; that the nose "bled the very next day," but that "it was very light. Wasn't serious at all, at the time, that is, I thought"; that nosebleeds "occurred real mild at first, like it was once every two weeks," then gradually "once every day" until he consulted Dr. Sparks; that some time after being given a "chemical treatment" by Dr. Sparks, "I had a cold, and sneezing one afternoon; it started bleeding again * * *"; and that when it continued after he got over the cold he went to see Dr. Baxter.
The jury returned its verdict in favor of the plaintiff in the sum of $17,500. Upon appeal to the Court of Appeals, the judgment was reversed and the cause remanded for a new trial, one judge dissenting. In so doing the Court of Appeals overruled defendant's assignment of error No. 2 ("admitting * * * medical records rubber stamped by Dr. Edward J. Baxter"); sustained assignment of error No. 1 (finding "from the record no competent medical evidence to establish the causal relation between the surgery * * * on February 28, 1967, and the injuries sustained by plaintiff * * * in the accident on June 4, 1966"); and sustained assignment of error No. 3 (finding that by plaintiff's "failure to introduce independent medical evidence as to the causal relation between the accident and the surgical operation, thereby depriving defendant * * * of the right of cross-examination, the court erred by failing to withdraw such parts of the hospital records which inferred any causual relation between the accident and the operation.").
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Freeman Freeman and Mr. Herbert R. Freeman, for appellant.
Mr. Thomas B. Hayes, for appellee.
As briefed and argued to this court, the basic issue of law to be decided concerns the admissibility of those portions of the hospital records prepared by or under the supervision of Dr. Baxter. Although the Court of Appeals, by overruling assignment of error No. 2 in that court upheld the admissibility of those records against the claim that they were rendered inadmissible merely by reason of the use of a rubber stamp signature, that court, by sustaining assignment of error No. 3, held such records to be inadmissible because of the failure of plaintiff to introduce "independent evidence" as to the causal relation between the accident of June 4, 1966, and the surgical operation of February 28, 1967. Then, too, assignment of error No. 1 was sustained on the basis of a finding of no "competent" medical evidence as to such causal relation.
This language is susceptible of an interpretation that the hospital records contained evidence which, if admissible, might be sufficient to prove such causal relation; that by requiring "independent evidence" thereof, the Court of Appeals ruled such evidence not to be "competent"; and upon this basis alone held that the requisite medical proof was lacking.
However, an examination of the hospital records reveals absolutely no medical evidence, "competent" or otherwise, as to such causal relation. The hospital record containing plaintiff's history recited that plaintiff had been seen by Dr. Baxter at his office on June 10, 1966 "at which time he stated he was hit by another car while driving on June 4"; that "he states his nose hit the steering wheel and that he had an X-ray of his nose at that time which showed no fracture"; and that he was seen on February 20, 1967, in the office "at which time he complained of a nosebleed on the lt. which has become more and more frequent since his accident and is now occurring daily on the lt. side." The mere recitation of such history does not constitute the establishment of the requisite causal connection by the testimony of medical witnesses. Nowhere in the hospital records does Dr. Baxter express any opinion as to the causal relationship between the accident and the deviated septum.
Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion. Drakulich v. Indus. Comm. (1940), 137 Ohio St. 82. Cf. Bowling v. Indus. Comm. (1945), 145 Ohio St. 23; Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205; Lacy v. Uganda Investment Corp. (1964), 7 Ohio App.2d 237. See, also, De Tunno v. Shull (1957), 166 Ohio St. 365; Day v. Gulley (1963), 175 Ohio St. 83.
Here, no such evidence was adduced, either by way of the testimony of Dr. Sparks or by way of a medical opinion by Dr. Baxter. Under this state of the record we need not decide — nor do we decide — whether such proof could have been supplied by the introduction of hospital records containing such a recorded expression of opinion, if such existed.
So far as medical opinion is concerned, the only evidence herein is the testimony of Dr. Sparks that "the deviated septum was from fracture." When this is coupled with the evidence to the effect that after the accident X-rays showed no fracture, and when considered along with the passage of time between the accident and the first diagnosis of a "deviated septum" by Dr. Sparks in December, 1966, it is clear that expert medical opinion was required to establish the issue of causal connection between the existence of the deviated septum and the accident of June 4, 1966. In the absence of such medical opinion, it was error to refuse to withdraw that issue from the consideration of the jury.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
CHIEF JUSTICE TAFT participated in this case which was, however, decided after his death.
LEACH, J., of the Tenth Appellate District, sitting for MATTHIAS, J.