Lois TODD, By Her Next Friend, William Kelly Todd
v.
Earl Keith WATTS and Ethel Watts.
No. 692.
Supreme Court of North Carolina.
February 3, 1967.*450 Williamson & Walton, Whiteville, for plaintiff.
Marshall & Williams, Wilmington, for defendants.
SHARP, Justice.
Plaintiff's evidence was ample to overcome both defendants' motions for nonsuit. 3 Strong, N.C.Index, Negligence § 8 (1960). There must, however, be a new trial for errors in the admission of evidence. The court overruled defendants' objections to the following questions, which plaintiff's counsel asked Dr. Piggott, and denied defendants' motions to strike the answers elicited:
"Q. Doctor, will you state what diagnosis you made as a result of your examination on March 23rd, 1963?
"A. Yes, sir; my diagnosis reads, from my records: Auto accident with original contusion injuries of forehead and scalp and skull, without fractures, plus abrasion injuries of the knee that have healed, plus wrenching and contusion injuries of the low back with persistent chronic low back pain.
"Q. Doctor, as a result of talking to Mrs. Batten on March 23rd, 1963, did you form an opinion, or do you have an impression as to whether she will have any type permanent disability as a result of her injuries she sustained in the accident on October 26th (sic), 1962?
"A. Yes, sir.
"Q. What is that opinion?
"A. I felt patient would have some minimal permanent disabilityminimal residual permanent disability as regards her low back wrenching injuries and her persistent headaches. I went on to state I made no attempt to examine the patient's eyes, or evaluate patient's ocular complaints.
"* * * My impression was she had some continuing lumbosacral strain and persistent headaches as a result of her auto accident.
*451 "Q. Doctor, did you find any scars on her knees which she received in the accident, or any scars on her legs?
"A. There were no major scars. She had abrasion injuries and I have no record of any major scarring of her knees or legs.
* * * * * *
"Q. The congenital finding that you made on Mrs. Batten's back, could it have been aggravated by an injury or blow she received in this automobile accident?
"A. Yes, sir."
Since it is the jury's province to find the facts, the data upon which an expert witness bases his opinion must be presented to the jury in accordance with established rules of evidence. Stansbury, N.C.Evidence § 136 (2d Ed.1963). "It is well settled in the law of evidence that a physician or surgeon may express his opinion as to the cause of the physical condition of a person if his opinion is based either upon facts within his personal knowledge, or upon an assumed state of facts supported by evidence and recited in a hypothetical question." Spivey v. Newman, 232 N.C. 281, 284, 59 S.E.2d 844, 847. A witness is not permitted to base an opinion upon facts of which he has no knowledge. Robbins v. C. W. Myers Trading Post, Inc., 251 N.C. 663, 111 S.E.2d 884. This, however, is what Dr. Piggott purported to do. He had no personal knowledge that plaintiff was involved in an automobile accident on October 27, 1962, or, if she was, that she sustained any injuries in the accident. Yet, he stated to the jury as a fact that, in the accident in suit, plaintiff had sustained, inter alia, "wrenching and contusion injuries of the low back with persistent chronic low back pain"; that she had "continuing lumbo sacral strain and persistent headaches as a result of her automobile accident"; and that her congenital spinal defects could "have been aggravated by an injury or blow she received in this automobile accident." Whether plaintiff had persistent headaches and continuous backaches and, if so, whether the collision caused them, were crucial questions in the case.
The doctor could not assume the cause or source of the symptoms which plaintiff reported to him and which he found five months after the accident in suit. His opinion as to the possible cause of these symptoms and their probable permanency, should have been elicited as the response to a properly phrased hypothetical question which included all material facts necessary to enable him to form a satisfactory opinion. Stansbury, N.C. Evidence § 137 (2d Ed.1963).
New trial.
PARKER, Chief Justice (dissenting).
This action was commenced by the issuance of summons on 11 August 1964.
The record shows that Dr. J. Burr Piggott, Jr., testified before the quoted part of his testimony in the majority opinion in substance, except when quoted: On 23 March 1963 he first saw plaintiff and made an examination of her in his office in South Carolina. He testified:
"At the time of my examination, I obtained a history of her injuries or her complaints. (Defendants requested, and the Court instructed the Jury, that any statement by the witness as to what the Plaintiff said to him is to be considered by the Jury as it may tend to corroborate or support her testimony as she has previously testified here in Court, if the Jury finds that it does corroborate her testimony. It is not substantive evidence.) The patient gave a history of having been involved in a two car collision or auto accident on the 26th of October, 1962, at 4:00 p. m. in the afternoon when she was riding in the front right hand seat of a car driven by her father. The patient told me she was thrown forward when the collision occurred, striking her head and forehead against the front windshield glass, breaking the glass and abrading her *452 forehead. She told me she was dazed for a few minutes, and she also wrenched and contused both knees and her low back. The patient further stated she was taken to her family physician immediately, Dr. Charles Simpson, Tabor City, who rendered first aid, cleaned up and treated her abrasions, and advised conservative treatment. She told me she had been up and around since the accident and had continued her schooling, but had not participated in any sports activities. She had continued complaining of pain in her back and complained of frontal headaches with difficulty in vision. The wrenching injuries to her knees has largely subsided. Patient had been up and around but she said she was having trouble with her low back and headaches."
In Penland v. Bird Coal Co., 246 N.C. 26, 97 S.E.2d 432, Johnson, J., writing for the Court said:
"The defendants in their brief concede that the direct testimony of Dr. Chapman, `standing alone, if competent, would support an award.' However, the defendants contend that Dr. Chapman's opinions as to plaintiff's alleged disability should be disregarded and treated as incompetent evidence in view of the witness' admissions made on cross-examination to the effect that the testimony was based upon `subjective statements made by the claimant.'
"As to this contention, the rule is that ordinarily the opinion of a physician is not rendered inadmissible by the fact that it is based wholly or in part on statements made to him by the patient, if those statements are made, as in the instant case, in the course of professional treatment and with a view of effecting a cure, or during an examination made for the purpose of treatment and cure. `In such cases statements of an injured or diseased person, while not admissible as evidence of the facts stated, may be testified to by the physician to show the basis of his opinion.' 20 Am.Jur., Evidence, Sec. 866, p. 729; Annotation: 65 A.L.R. 1217, p. 1223 et seq. See also: Annotations: 67 A.L.R. 10, 11, 18; 80 A.L.R. 1527; 130 A.L.R. 977; Wigmore on Evidence, Third Ed., Sections 688, 1718, and 1720; Rogers on Expert Testimony, Third Ed., Section 131, p. 301 et seq.; McCormick on Evidence (Hornbook), Sec. 266; Bryant v. Burns-Hammond Construction Co., 197 N.C. 639, 150 S.E. 122, and cases there cited; Martin v. P. H. Hanes Knitting Co., 189 N.C. 644, 127 S.E. 688."
The testimony of Dr. Piggott I have quoted above was admitted in evidence without objection by defendant. In my opinion, the testimony of Dr. Piggott, as quoted in the majority opinion, was competent and properly admitted in evidence. I do not agree with the majority that such testimony was inadmissible in evidence, and necessitates a new trial. To hold, as the majority opinion does, that Dr. Piggott's diagnosis and opinion are inadmissible in evidence because based in part on statements given to him in 1963 by plaintiff when she was examined by him for the purpose of rendering to her medical assistance, is unpractical, because a doctor customarily relies upon such statements made to him by a patient in the practice of his profession, and such a holding defies the usual processes of medical thought.
I vote to sustain the verdict and judgment below.