Summary
In Day v. Gulley (1963), 175 Ohio St. 83, 86, the Supreme Court of Ohio determined that if the injury is subjective in character, there must be expert evidence as to future pain and/or suffering, permanency of injuries, or lasting impairment of health.
Summary of this case from Canterbury v. SkulinaOpinion
No. 37678
Decided June 26, 1963.
Damages — Personal injuries subjective in character — No expert evidence as to future suffering or permanency of injury — Charge to jury on amount of damages, erroneous, when.
In a personal injury action, where the plaintiff's injuries are subjective in character and there is no expert medical evidence as to future pain, suffering, permanency of injuries or lasting impairment of health, it is prejudicial error for the trial court to charge the jury in its general instructions that, "in determining the amount of damages, the jury should consider the nature and extent of the injuries, whether or not the injuries are in all probability permanent or temporary only; the pain and suffering plaintiff has endured and with reasonable certainty will endure in the future."
CERTIFIED by the Court of Appeals for Huron County.
This is an action for damages for personal injuries growing out of a collision between a truck and trailer, operated by the defendant, and an automobile in which the plaintiff was a passenger. The defendant admits that his negligence caused the plaintiff's injuries.
In her petition, the plaintiff alleges that she sustained the following injuries: "* * * severe sprain to her right wrist; that the muscles and ligaments of her left wrist were also strained; that she sustained an injury to the cervical region of her spine; that she sustained muscular spasms in the cervical region of her spine; that she sustained a sprain to the lumbar region of her back; that she sustained traumatic peritonitis."
Plaintiff alleges further in her petition "that she experiences pain and tenderness in the cervical region of her spine and in the lumbar region of her spine to the present time, intermittently; that she still experiences disability and pain in her right wrist; that the injuries above described are as she believes of a permanent nature."
Dr. C.B. Thomas was called by the plaintiff, and he testified that he saw her at the hospital five hours after she was admitted following the accident; and that the pain and tenderness she had complained of in her abdomen had subsided. She complained to him primarily of pain in her right wrist and hand. Her blood pressure and pulse were normal and there was no evidence of shock. She complained to him of distress in the posterior portion of her neck, and that her right wrist was somewhat swollen and she had discomfort in her right hand. She also complained of discomfort in the lumbar area of her back. X-rays of the neck, wrist and hand and lumbar region of the spine showed no evidence of any fractures or dislocations.
Two days later she was up and around, still complaining of discomfort primarily in the neck, right hand and wrist and lower back.
At the end of three days, she was discharged from the hospital with instructions to come to the doctor's office. No specific treatment was given to her in the hospital other than observation and pain medication to make her more comfortable.
The doctor then testified that at the time plaintiff was discharged from the hospital she still complained of neck pain and lower back pain and some distress in her wrist. He testified that these are called subjective symptoms. When asked the difference between subjective and objective symptoms, he said:
"Subjective symptoms are symptoms that the patient tells you about; in other words, in contrast to objective symptoms, which are findings that you can find physical evidence of some pathological change."
The doctor was asked:
"Q. Now, Doctor, can you give us an opinion, assuming that she still has the low back pain, can you give us an opinio as to how long this will persist? A. No, I can't."
The doctor testified further on cross-examination:
"Q. In any event, it would be safe to conclude that from the fifteenth of February on there was no objective signs of any of these injuries, as you described them as existing on the date you saw her in the hospital? A. That is correct."
Dr. William B. Holman testified as a witness on behalf of the defendant, as follows:
"Q. Now, assuming that the tenderness, that you observed there in the low back, existed and had existed continuously from December, or from February 8, 1958, and you found it in existence almost two years, or not quite two years, but almost two years later, could you make a prediction, from what you observed, as to how long that condition would persist in the future, Doctor? A. No.
"Q. Is it impossible to do so in your opinion? A. I think so."
In his general instructions, the trial judge charged the jury as follows:
"In determining the amount of damages, the jury should consider the nature and extent of the injuries, whether or not the injuries are in all probability permanent or temporary only; the pain and suffering plaintiff has endured and with reasonable certainty will endure in the future."
The defendant made specific objection to that portion of the charge referring to the permanency of the injuries and requested the court to instruct the jury that it should not consider as an element of damages the permanency of the injuries. This was overruled by the court.
During the course of deliberation, the jury submitted a question to the court, as follows:
"To what extent of injury has determined the figure of $50,000, or how or why has the $50,000 figure been arrived at?"
This figure was the prayer of the petition.
The jury returned a verdict in the amount of $15,000, for which judgment was rendered.
A motion for new trial was overruled, and the Court of Appeals affirmed the judgment.
This cause is before this court upon a certification of the record to this court by the Court of Appeals for the reason that its judgment is in conflict with the judgments in the Franklin County case of Brush v. Eastern Motor Dispatch, Inc., 61 Ohio Law Abs., 219, 104 N.E.2d 700, and the Madison County case of McCoy v. Gilbert, 110 Ohio App. 453, on the subject of the submission to the jury of the permanency of these injuries as an element of damages.
Messrs. Freeman Freeman and Mr. Robert A. McKown, for appellee.
Messrs. Flynn, Py Kruse and Mr. Raymond N. Watts, for appellant.
The question for this court to determine is whether there must be expert evidence as to future pain or suffering, permanency of injuries or lasting impairment of health, where the injury is subjective in character.
The general rule on the subject is stated, as follows, in the annotation, 115 A.L.R., 1149, at page 1150:
"* * * That is, if the injury is of an objective nature (such as the loss of an arm, leg, or other member) the jury may draw their conclusions as to future pain and suffering from that fact alone (the permanency of such injury being obvious); whereas there must be expert evidence as to future pain and suffering or permanency where the injury is subjective in character." See, also, 15 American Jurisprudence, 815, Damages, Section 377.
A leading Ohio case, Tully v. Mahoning Express Co., Inc., 161 Ohio St. 457, follows the same reasoning and expresses the rule that expert medical testimony is necessary to sustain a verdict for future medical expenses, as well as future loss of wages.
This same rule with regard to the permanency of injury and the assessment of damages for pain, suffering and disability as a result of such permanency of injury is supported by the greater weight of authority in jurisdictions outside Ohio and was followed in Brush v. Eastern Motor Dispatch, Inc., supra, paragraph two of the headnotes, as reported in 104 N.E.2d 700, reading as follows:
"In action by motorist for injuries sustained in an automobile-truck collision, where evidence showed that motorist had at intervals from time of his injury suffered headaches and aches from knee injury, and there was no expert testimony advising jury of probable time in future that such suffering would continue, charge that jury could consider any pain and suffering that jury was reasonably certain plaintiff would suffer in future, and that in considering question of measure of damages, jury would consider character of injuries as being permanent or otherwise as to their duration, was prejudicial in view of fact that any award as to future damages would be speculative."
Such rule was followed also in the case of McCoy v. Gilbert, supra, where the court, in a per curiam opinion, said at page 460:
"McCoy alleged the following serious injuries: `A fracture of the left fibula, left foot, a twisting and turning of the lumbar region of his back, causing severe strain to the muscles, tendons and ligaments of the lumbar region which also fired up a pre-existing arthritic condition . . . cuts and bruises about his face and head.' There was substantial evidence to support these allegations and to show continuing pain and disability up to the time of examination by medical witnesses.
"Serious as these injuries and their persistent effects appear, no one can determine from the evidence that they are permanent. In these circumstances, the absence of medical opinion on the point renders the jury's consideration of permanent pain and suffering conjectural and the instruction erroneous."
In the Tully case, supra, Judge Hart, referring to the plaintiff's estimate of his future hospital expenses, the period of necessary future hospitalization and the length of time he would be out of employment by reason of further hospitalization and medical treatment, said:
"The inquiries made of the plaintiff call for a knowledge of matters of a highly technical and speculative nature, not ordinarily possessed by a layman, and involved the estimate of expense in a field about which the plaintiff, so far as the record shows, knew absolutely nothing. Only one who has expert knowledge of medicine or hospitalization could possibly testify within the range of probability on the subjects under consideration."
The symptoms of the injuries testified to by the plaintiff in the trial of the instant case were purely subjective at the time of the trial, and there was no expert medical testimony, or any other testimony for that matter, showing any objective nature of the alleged injuries.
The plaintiff takes the position that the damages awarded are not excessive and, therefore, that the judgment of the Court of Appeals should be affirmed.
However, the record discloses that, in argument to the jury, counsel for the plaintiff relied heavily upon the permanency of the injuries. Thus, in the record the following argument appears:
"Ladies and gentlemen, neither of the doctors are going to express an opinion as to when that condition will clear up; therefore, you may presume that the condition of the back is a permanent condition. * * *
"* * *
"* * * does that give the right to inflict future damage upon her, which consists of injury to the lower back, which makes her nervous so she can't sit still? * * *
"Here is a young woman beginning her life, at a time when she may have a family of three or four children and her injury, which is at an important part of her anatomy. You people who have experience with low back pain know what I mean by that. It's in the low part of the spine and she had this permanent injury, ladies and gentlemen, and she has had it now for four years and she is going to have it for the rest of her life.
"* * *
"So you see, ladies and gentlemen, we are confronted with that situation, but the pain and suffering are the same and these disabilities that this young lady has, which she will never forget when she goes to do any lifting, whenever she goes to do the thousands of things a housewife must do, when she goes to do the things a mother must do, which is constantly lifting young children; she's going to be reminded of the thing that happened out there on February 8, 1958.
"* * *
"* * * and what expenses a young woman is faced with at twenty-one years, with a lifetime of taking care of youngsters, doing all the things that a housewife must do, taking that into consideration then and arrive at a figure which you think will justly compensate this lady, do justice between the parties hereto."
In view of the fact that the only evidence of permanency of injury is subjective in character, and that there is no medical evidence of the objective character of the injury or the permanency of the injury, the jury was left to pure speculation as to the assessment of damages for pain, suffering and disability caused by the alleged permanency of the injury, and the charge of the judge quoted above with regard to this subject was erroneous and prejudicial to the defendant.
The judgment of the Court of Appeals is reversed, and the cause remanded to the Common Pleas Court for a new trial.
Judgment reversed and cause remanded.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH and HERBERT, JJ., concur.