Reed v. Aetna Casualty & Surety Co.

DIES, Chief Justice

(dissenting).

I respectfully dissent. I believe the holding of Loper v. Andrews, 404 S.W.2d 300 (Tex.Sup.1966) requires a new trial of this case. The records of Dr. C. 0. Dube, admitted under the provisions of Tex.Rev.Civ. Stat.Ann. art 3737e, contained the following medical diagnoses:

“Card No. 1 10-5-67

“Myositis

“Radiculitis

“Card No. 2 10-14-67

“Cervical Arthritis

“Myositis

2-3-69

“Myositis

“Card No. 3 11-24-69

“Subdeltoid Bursitis

“Card No. 5 6-19-72

“Myositis”

Dr. James R. Oates who testified for plaintiff concluded she had a stretch-type injury to her nerve. Dr. Ronald D. Jackson who testified for defendant essentially found no injury. In cross-examining Dr. Jackson, defendant’s counsel asked:

“Q. What is Myositis? [The diagnosis on Dr. Dube’s record]

“A. Just a term describing inflammation of a muscle.

‡ ⅝ ‡ ‡ ‡ ⅜

“Q. Can Myositis and Neuritis be caused by something other than trauma? “A. Yes.”

Dr. Jackson was also asked what Radiculitis means.

“A. It means irritation of a nerve at its origin.

“Q. Can this take place anywhere on the body?

“A. Anywhere on the spine.

“Q. O.K. And would that affect the extremities, the legs, the arms?

“A. Yes.”

In Loper, supra, the court said at 305: “In approving the Rodriguez [Travis Life Insurance Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App. — Austin 1959), approved by the Supreme Court in 160 Tex. 182, 328 S.W.2d 434] construction of the statute [TEX.REV.CIV.STAT.ANN. art. 3737e] we do not hold that diagnostic entries in hospital records may be considered as competent evidence of the condition they describe where they are genuinely disputed and necessarily rest largely in expert opinion, speculation or conjecture.

“A witness is generally permitted to testify only to facts within his personal knowledge. He does not have to possess special qualifications to do so. He is not permitted to express an opinion since this invades the province of the trier of the facts. An exception to the personal knowledge prerequisite is represented by the testimony of a qualified expert in the expression of an opinion in the field of his qualifications. This is permitted because experts are considered to have a special knowledge not generally possessed by jurors and are better able to draw conclusions from the facts than the jurors. The diagnosis or medical opinion of a doctor is an example. Such testimony is in the nature of an expert opinion based on the application of the expertise of the doctor to the facts within his knowledge. The opportunity of cross-examination is unusually important to adversely affected parties. We do not read Article 3737e as purporting to render entries of such character admissible without exception; we construe the statute as doing so only in those instances where it can be said that the diagnosis records a condition resting in reasonable medical certainty.” (Emphasis supplied.)

Dr. Dube’s diagnosis of “Myositis” is not a condition “resting in reasonable medical certainty.”

Nor is Cervical Arthritis or Bursitis a reasonable medical certainty. The harm of the admission of this diagnosis to plaintiff’s case was compounded when defendant’s attorney proved by his doctor that Myositis could be caused by something other than trauma (and therefore non-compensable).

The right of cross-examination of witnesses is one of the most important cornerstones of our system. “Expert testimony” may often call for vigorous cross-examination as clearly as any other evidence. I believe the Loper, supra, holding is wise and practical, but I believe it should be strictly interpreted.