dissenting. The trial court permitted the jury to award damages based on permanent injuries and to compensate for future medical expenses. I would bold the submission of these issues to have been erroneous.
Where an injury per se does not show permanency to a reasonable degree of medical certainty, and where there is absent a medical opinion reasonably indicating permanency, the question of permanency should not be submitted to the jury. See St. L. I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913); Midwest Bus Lines v. Williams, 243 Ark. 854; and 85 ALR 1022. The recited requirements are fully supported by a line of our holdings cited in the case of Keaton v. McCook, 210 F. Supp. 226 (1962); that is not to say that the certainty must be absolute, but it must preclude mere conjecture or even probability.
Miss Humphrey suffered a whiplash injury to the neck. Her doctor testified that in 1965 he found a muscle spasm which could not be faked. At that time it was his opinion that as a result of the injury she could turn her head to the right only partially and that the movement of the head upward was then limited by approximately fifteen per cent. Then upon examination in 1966, he was “delighted” with her “dramatic changes for the better” and concluded that prescribed exercises resulted “in improvement.” Later in his testimony he made this statement: “I think this girl will have difficulty finding employment anywhere a physical examination is given”. Yet the doctor does not say just how long that situation, in his opinion, would continue.
Miss Humphrey testified, describing her difficulty in neck movements and headaches. Her visits to the doctor have been virtually discontinued. She takes some type of tablets to relieve her muscle spasms and headaches. In her last two job applications she has stated that she had no physical limitations.
Appellant offered the testimony of an orthopedic surgeon who had been called upon to examine Miss Humphrey for the Social Security Administration. The first examination was in 1965 and the only other examination was in 1967, the latter apparently being for the purpose of testifying. It was his finding that she had sustained a whiplash injury and had received excellent treatment. He found no permanent injury.
Miss Humphrey’s doctor was conceded to be an outstanding surgeon. He was not ashed to give a medical opinion as to the permanency of the alleged injury. That fact is particularly significant in view of the unqualified opinion of appellant’s doctor that there was no permanency.
The conclusion of this dissent is not out of harmony with our recent holding in Bailey v. Bradford, 244 Ark. 8, 423 S. W. 2d 565 (opinion of February 5, 1968). There the jury had only lay testimony with which to evaluate permanency. However, the objective evidence of appellee’s injuries in that case, together with medical testimony of severe brain damage, were sufficient to indicate the permanency of her injuries.
To permit appellee to recover for future medical expenses presents a still more serious error. The only testimony in that respect is that she was taking pain tablets, the cost of which is not found in the record. There was no medical prediction that she would ever have to undergo future surgery or hospitalization.
I would reverse and remand for new trial.
Fogleman and Jones, JJ., join in this dissent.