Nelson v. Taylor

GOOLSBY, J.

(dissenting):

I respectfully dissent. I would hold the trial court did not err in admitting the testimony from the physical therapist about the cause of Nelson’s rotator cuff tendinitis.

The question of the therapist’s qualifications to give expert testimony in this instance was one addressed to the sound discretion of the trial court.7 Just as an emergency room technician who had intubated more than 100 patients and who taught physicians on intubation procedures was qualified to testify as an expert witness in a medical malpractice action in which the patient claimed that an anesthesiologist’s negligence in performing intubation had fractured the patient’s two front teeth, I should think that a certified physical therapist who held an undergraduate degree and a three-year degree from a medical university and whose expertise as a physical therapist was conceded by the other party should be qualified to testify as an expert witness in a wreck case in which the patient claimed that an automobile accident caused a certain physical injury.8

I see nothing in the statutory law cited by the majority that would proscribe the admission of Bachour’s statement that *220Nelson’s rotator cuff tendinitis resulted from the setup of her work station. There was nothing in the record that would even remotely suggest that Bachour’s treatment of Nelson was inconsistent with the advice of any of her treating physicians. Moreover, as the majority acknowledges, the legislature no longer requires a patient to obtain a prescription from a physician before receiving treatment from a physical therapist.9

Bachour first treated Nelson on November 20, 1995, shortly after the accident. At that time, Nelson’s primary complaints concerned pain in her cervical spine and pain towards her right shoulder. From the record, it appears Nelson was discharged from Bachour’s care the following month, and it was noted she had shown good progress in physical therapy and had intended to return to work the following week. In April 1996, Nelson again sought treatment from Bachour, this time complaining mainly of right shoulder pain that occasionally radiated to her right upper extremity. It is the assessment Bachour made in his notes on April 1, 1996, several months after Nelson had initially been discharged from his care, that Nelson argues should not have been admitted at trial.

As Nelson’s attorney aptly pointed out when questioning Bachour, there was no mention in the subjective portion of Bachour’s notes that Nelson said anything about a mouse or a computer station; however, the notes Bachour made in April 1996, made no reference to Nelson’s automobile accident either. Moreover, Bachour testified that he routinely questioned his patients about what activities gave them pain and that his assessment was based on what Nelson had told him. Given these circumstances, I would hold Bachour’s deposition testimony about what his notes reflected regarding the origin of Nelson’s later complaints did not exceed the domain of his expertise as a physical therapist.

*221Furthermore, Bachour’s determination of the reason for Nelson’s later complaints was more in the nature of a clinical, as opposed to a medical, diagnosis.10 There was no attempt to refute Bachour’s statement that, although he did not give medical diagnoses, he had training in clinical diagnosis, which, as described by none other than Nelson’s attorney, entailed “making a clinical diagnosis based upon what they tell you, what the diagnostic tests tell you and based upon your observation on them.”11 With due respect to the.majority, then, I attach no significance to Bachour’s admission that he did not make medical diagnoses.

I would further hold Nelson’s argument concerning the denial of the motion for a new trial nisi additur is manifestly without merit.12

. Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 487 S.E.2d 596 (1997).

. See Gooding, 326 S.C. at 252-53, 487 S.E.2d at 598 ("To be competent to testify as an expert, ‘a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony.’ ”) (quoting O’Tuel v. Villani, 318 S.C. 24, 28, 455 S.E.2d 698, 701 (Ct.App.1995)); 31A AmJur.2d Expert and Opinion Evidence § 55, at 61 (1989) ("Simply stated, in order to qualify as an expert, a witness must possess special knowledge of some subject on which the jury’s knowledge would presumably be inadequate without expert assistance.”).

. S.C.Code Ann. § 40-45-20(9) (2001). In my view, this case is easily distinguishable for this very reason from Bolton v. CNA Insurance Company, 821 S.W.2d 932 (Tenn.1991), which the majority cites as persuasive authority. In Bolton, the Supreme Court of Tennessee emphasized that, under the applicable statute, "a physical therapist is allowed to evaluate and treat an injury using only specific agents, properties and methods, but she/he may do so only by referral of a licensed doctor of medicine, osteopathy or podiatry, except for the initial evaluation.” Id. at 936.

. See Black’s Law Dictionary 464 (7th ed. 1999) (defining "clinical diagnosis” as "[a] diagnosis from a study of symptoms only”).

. Although, as the majority notes, Bachour did not examine any of the diagnostic tests that had been performed on Nelson, I would hold this deficiency went to the weight, rather than to the admissibility, of his testimony.

. See McCourt v. Abernathy, 318 S.C. 301, 308, 457 S.E.2d 603, 607 (1995) ("The trial judge alone has the power to grant a new trial nisi when he finds the amount of the verdict to be merely inadequate or excessive and the denial of such a motion will not be reversed on appeal absent an abuse in the trial judge’s discretion.”).