Todd Ex Rel. Todd v. Watts

152 S.E.2d 448, 269 N.C. 417, 1967 N.C. LEXIS 1084

• Court: Supreme Court of North Carolina
• Decided: February 3, 1967
• Docket: 692
• Status: Published

Opinions

Sharp, J.

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. Pig-gott, 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 disability — minimal 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 lumbo-sacral strain and persistent headaches as a result of her auto accident.

“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. Bobbins v. 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.