I am unable to agree with the holding of the majority of the court, denying the right of a child to recover for injuries negligently inflicted upon it before birth. On this phase of the case, I agree with the reasoning of the minority as expressed in the dissenting opinion of Mr. Chief Justice Brogan.
I conceive that there was an erroneous ruling of the trial court on a question of the admission of evidence and that the *Page 460 evidence so admitted went to the very crux of the question for determination by the jury and may well have been the determining factor in the verdicts rendered in the trial court.
An essential ingredient of the plaintiff's case was evidence that the pelvic irradiations, i.e., X-ray applications, were the cause of the infant's tragic condition when born. To establish this fact, the plaintiff called one Edgar A. Doll, a doctor of philosophy with extensive experience in the field of psychology and connections with many institutions handling mental deficients. Dr. Doll examined the child about nine months prior to the trial of the cause. His examination was not for the purpose of treatment and was at the request of counsel for the plaintiffs. Prior to the examination he was given a history of the parents and a history of the child, both histories, he testified, being essential in forming his opinion as to the cause of the infant's condition. The record will be searched in vain for any evidence of a history of the father, Jacob Stemmer, barring his testimony that he was fifty-four years old and a carpenter by trade.
During the course of his direct examination, Dr. Doll was asked:
Q. "Now, in your examination of the Stemmer boy in this particular case did you examine into and investigate the presumptive cause?"
A. "I did."
Q. "What did you find it to be?"
This was objected to on the ground that the answer would be based upon hearsay and that the witness could only testify as to the examination made by him, without the history. After some further questions and answers dealing with the qualifications of the witness, the examination continued:
Q. "Doctor, will you then tell us whether or not in order to arrive at a conclusion or establish the idiology of this child, the Stemmer boy, whether it was necessary and essential in order to arrive at a conclusion to go into the presumptive causation of his idiotcy?"
A. "Yes."
Q. "What did you find when you made that investigation?"
Objection was interposed on the two grounds that the *Page 461 answer would necessarily call for hearsay testimony and that it would call for a history, and that the witness, being called as an expert, could neither use nor refer to the history, but was limited to testifying as to the result of his examination. The objection was overruled, exception taken and the ruling made a ground of appeal and argued in appellant's brief. In passing, it is of interest to note that respondents' brief does not cite a single case or authority contra appellant's argument. The witness, on cross-examination, admitted that his opinion could not be based entirely upon his examination of the child; that part of the needed information was given him by others, unspecified; part by members of the family; part by members of the medical profession; that he took the report of his colleague that the dosage was sufficient to produce the condition; that he was not informed of the dosage and that "some of the vital part of your [his] testimony" was based on what someone told him.
The question of the admissibility of the opinions of medical experts is one of importance in the administration of justice and it would seem that the rule in New Jersey has been settled these many years.
In 1881, Mr. Justice Scudder speaking for the Supreme Court inState v. Gedicke, 43 N.J.L. 86 (at p. 88) said: "The first exception is to allowing Dr. Bleye, a consulting physician, who was called in by her father, to testify how he examined the complaining witness, S.S., to ascertain her pregnancy, and to relate what she said to him. These declarations were made by her to the physician at the time he was called upon as an expert to determine the state of her health, and were statements of her bodily feelings, and the symptoms of her supposed pregnancy. This evidence was admissible. It is an exception to the usual rule excluding hearsay evidence, and is founded on the necessity of learning from the patient herself facts within her own knowledge, which the physician should know to form an intelligent and accurate opinion of her present health and situation. * * * If the object of the examination is to care for her health there is the strongest inducement for her to speak the truth; if she be influenced by any other consideration the jury must determine *Page 462 the weight of the evidence, as in other cases." The law as above set forth received the approval of the Supreme Court inConsolidated Traction Co. v. Lambertson, 59 Id. 297.
In Birtwistle v. Public Service Railway Co., 94 N.J.L. 407, the Court of Errors and Appeals was asked to reverse the judgment of the Supreme Court which had reversed a judgment in the trial court because of error in admitting in evidence the testimony of one Dr. Rathgeber. In sustaining the judgment of reversal the court said (at p. 410): "It is obvious that the plaintiff might have elicited Dr. Rathgeber's opinion as an expert if he had had put to him a hypothetical question which assumed the facts in accordance with the theory of the plaintiff, and which the evidence tended to prove (Daggett v. NorthJersey Street Railway Co., 75 Id. 630); and the Supreme Court's reversal, upon the ground that the doctor's testimony was based upon hearsay and not a hypothetical question, is correct, and the judgment under review should therefore be affirmed."
Somewhat later the Supreme Court had occasion to say inAltieri v. Public Service Railway Co., 101 N.J.L. 241, that the testimony of a medical expert as to the condition of a plaintiff, which was based to some extent upon information received from third persons, was incompetent where the expert had been employed to make an examination of the plaintiff solely for the purpose of qualifying himself as a witness, and not for the purpose of treating the patient. The court went on to say, "This is the settled rule with relation to such testimony, and its admission in the present case was, we think, harmful error." Cf.Weh v. Peoples Rapid Transit Co., 109 Id. 307.
If there existed a doubt on the question, it was laid at rest by Mr. Justice Parker, speaking for the Court of Errors and Appeals in Sandford v. The Chanaz Co., 117 N.J.L. 485, where he said: "We think it is perfectly plain that almost throughout the examination of these medical experts there was a violation of the general rule that where the statements of the party are made not to his own medical adviser for the purpose of proper medical treatment, but are made to medical experts for the purpose of enabling that expert to give his *Page 463 opinion evidence in a court of law, they are obnoxious to the rule excluding hearsay evidence."
It seems apparent that the opinion of Dr. Doll was improperly admitted in evidence and that the error based thereon would call for a reversal if upon an examination of the whole case it appears that the error injuriously affected the substantial rights of a party. R.S. 2:27-363. Bearing in mind that the cause of the infant's condition was at the nub of the controversy; that the great numerical weight of the medical testimony was to the effect that the X-ray applications were not its cause; that without the testimony of Dr. Doll the plaintiffs' case on this essential aspect depended upon the opinion of a single physician, the query naturally arises as to whether the substantial rights of a party were injuriously affected. The answer seems indubitably that they were.
The judgments under review should be reversed, and the cause sent back for a new trial.