Associated Indemnity Corp. v. Dixon

632 S.W.2d 833, 1982 Tex. App. LEXIS 4465
CourtCourt of Appeals of Texas
DecidedApril 7, 1982
DocketNo. 21018
StatusPublished
Cited by2 cases

This text of 632 S.W.2d 833 (Associated Indemnity Corp. v. Dixon) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associated Indemnity Corp. v. Dixon, 632 S.W.2d 833, 1982 Tex. App. LEXIS 4465 (Tex. Ct. App. 1982).

Opinion

AKIN, Justice.

Associated Indemnity Corporation, a worker’s compensation carrier, appeals from a judgment based upon a jury finding Mark Dixon totally and permanently incapacitated as a result of an occupational disease incurred while a meat unitizer for Kroger supermarkets. We reverse and remand on the ground that two prejudicial and inadmissible letters from Dixon’s attorney were admitted into evidence.

Associated contends that the trial judge erred in admitting into evidence the medical files of two doctors, Dr. Jewel Daughety and Dr. Bruce Faust. Associated specifically complains of a copy of a letter in each file from Dixon’s attorney to Dr. Faust requesting Dr. Faust’s answers to certain questions concerning Dixon’s injury. The letter in Dr. Daughety’s file, after establishing certain guidelines and providing definitions for “injury,” “injury in the course of employment,” “producing cause,” “sole cause” and “total incapacity” as used in the Texas Workers’ Compensation Act, contained the following questions and purported answers and initials of Dr. Faust:

1. In your professional opinion, and following the definition of “TOTAL INCAPACITY” given above, is Mark Leslie Dixon totally incapacited?
Please answer “yes” or “no”.
Answer: /s/ Probably yes Initials: /s/ BF
2. In your professional opinion, and following the definition of “Total Incapacity,” is such “TOTAL INCAPACITY,” if any, permanent; or was it or will it be only temporary?
Please answer “permanent” or “temporary”.
Answer: /s/ Probably permanent
Initials: /s/ BF
3. In your professional opinion, did Mark Leslie Dixon sustain an injury (as defined above) on or about January 3, 1980?
Please answer “yes” or “no”.
Answer: /s/yes Initials: /s/BF
4. In your professional opinion, was the “INJURY”, on or about January 3, 1980, if any, a “PRODUCING CAUSE” of any “TOTAL INCAPACITY”?
Please answer “yes” or “no”.
Answer: /s/yes Initials: /s/BF
5. Was the incident of June, 1980 (when Mark Dixon reported increased problems over the weekend due to mowing his yard) the sole and only cause of his incapacity after that time?
Please answer “yes” or “no”.
Answer: /s/ No Initials: /s/ BF

The letter in Dr. Faust’s file was identical except that the answers were not initialed by Dr. Faust. Associated specifically objected to the admission of the letters on the grounds that the medical files were not business records and that the letters were hearsay. The trial judge sustained these [835]*835objections, but admitted the files and letters for the limited purpose of showing what reports and opinions of other doctors that Dr. Daughety had before him as a basis for his opinion concerning Dixon’s injury.

Associated argues that these letters are prejudicial because they contain legal definitions, hearsay and opinion, and that Associated was denied the opportunity to cross-examine Dr. Faust concerning his answers. We agree and hold that these letters were neither medical records nor business records, but instead inadmissible hearsay. Thus, Associated was precluded from an opportunity to cross-examine Dr. Faust concerning his purported answer. We further hold that the letter in Dr. Daughety’s file was not information upon which Dr. Dau-ghety could rely in arriving at his opinion because it was a hearsay conclusion rather than a medical diagnosis of another physician. Consequently, we reverse and remand.

Under the Business Records as Evidence Act, Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp.1982), a file of correspondence and other papers concerning a particular matter is not admissible merely because someone familiar with the file testifies that it was the regular course of business to accumulate such a file. The statute is limited to memoranda and records made by employees of the business in the regular course of that business, and proof must be made that the employee who made the record, or transmitted the information to another employee to record, had personal knowledge of the facts recorded. Southwest Industries Investment Co. v. Sealf, 604 S.W.2d 233, 236 (Tex.Civ.App.—Dallas 1980, no writ). See Cooper Petroleum Co. v. La-Gloria Oil & Gas Co., 436 S.W.2d 889 (Tex.1969); Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712 (Tex.Civ.App.—Dallas 1977, writ ref’d n. r. e.). Because the medical files contained reports and documents not generated by the doctors or their employees but were produced from outside sources, the trial judge properly refused to admit the files as business records, but admitted them for the limited purpose of showing a basis for the diagnosis of Dr. Daughety.

In this respect, Dixon argues, however, that the letters were admissible to show Dr. Daughety’s basis for his medical opinion. We do not agree that the letter was admissible or that it could be used as a basis for his opinion. In Slaughter v. Abilene State School, 561 S.W.2d 789 (Tex.1977), the Texas Supreme Court overturned the old rule that a doctor, who examines a patient only for the purpose of making a report and testifying, cannot base his opinion as to the condition of the patient in part on the history of the case as related by the patient, but must base it solely upon an examination and objective symptoms. That court held that this rule placed an unfair limitation upon a party’s preparation for trial and the better reasoned rule was to admit testimony based, in part, upon reports of others which the expert customarily relies upon in the practice of his profession. 561 S.W.2d at 791. Medical experts generally may rely on reports from the patient, see Travelers Insurance Co. v. Smith, 448 S.W.2d 541, 543 (Tex.Civ.App.—El Paso 1969, writ ref’d n. r. e.); on professional reports, treatises, and textbooks, see Moore v. Grantham, 580 S.W.2d 142, 148 (Tex.Civ.App.—Tyler 1979) rev’d, 599 S.W.2d 287 (Tex.1980); and on examinations, tests and diagnoses by other doctors, see Roth v. Law, 579 S.W.2d 949, 953 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n. r. e.). See generally, McCormick & Ray, Texas Law of Evidence § 1404 (3d ed. 1980). The reports upon which the expert relies, however, must be those which are customarily relied upon in the expert’s profession before they are admissible to show the basis of the expert’s opinion.

Although Dr.

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632 S.W.2d 833, 1982 Tex. App. LEXIS 4465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associated-indemnity-corp-v-dixon-texapp-1982.