Beahm v. Shortall

Orth, J., delivered the opinion of the Court. This appeal requires that we look again at the rule followed in this jurisdiction concerning the admissibility of the testimony of a physician employed to examine a person, not for the purpose of treatment, but in order to qualify as an expert witness during litigation. I We have made a distinction between a treating physician and a nontreating physician. Our latest word on the matter ³²⁴ appears in Candella v. Subsequent Injury Fund, 277 Md. 120 , 353 A. 2d 263 (1976), in which we summarized the law: “We have applied in this State the universally-recognized principle that an attending physician may testify as to the medical history [ 1 ] related to him by his patient,[ 2 ] and may also state his conclusions reached on the strength of that history. .. .

Such testimony is admitted under an exception to the hearsay rule, the underlying rationale being that the patient’s statements to his doctor are apt to be sincere when made with an awareness that the quality and success of the treatment may largely depend on the accuracy of the information provided the physician. “In Maryland, however, we have not extended this principle to include the case in which the patient’s history has been related to a nontreating physician, . ..; in these instances, the trustworthiness which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony on his behalf rather than for purposes of diagnosis and treatment.” 277 Md. at 123-124 . ³²⁵ The principle with respect to the testimony of an attending physician was set out in Yellow Cab v. Henderson, 183 Md. 546, 552-553 , 39 A. 2d 546 (1944). 3 The question of the admissibility of the testimony of a nontreating physician, left open in Yellow Cab , was decided in Parker v. State, 189 Md. 244, 249 , 55 A. 2d 784 (1947), which declared it to be inadmissible. That rule has been consistently recognized from Parker to Candella. Francies v. Debaugh, 194 Md. 448, 457 , 71 A. 2d 455 (1950); Adams v. Benson, 208 Md. 261, 269 , 117 A. 2d 881 (1955), the court noting: “[The Parker] decision has never been overruled”; Wolfinger v. Frey, 223 Md. 184, 190 , 162 A. 2d 745 (1960); Connor v. State, 225 Md. 543, 557 , 171 A. 2d 699 , cert. denied, 368 U. S. 906 (1961); Penn Fruit, Inc. v. Clark, 256 Md. 135, 140-141 , 259 A. 2d 512 (1969). See Hodge v. Duley, 22 Md. App. 392, 394 , 323 A. 2d 607 , cert. denied, 272 Md. 743 (1974).

We have been aware of the criticism aimed at the restrictive rule of Parker. Candella v. Subsequent Injury Fund, supra, 277 Md. at 124 . We have noticed that courts in other jurisdictions have taken a more liberal view. In Adams v. Benson, supra, 208 Md. at 267 , after observing that “[t]he majority of the American courts have held that descriptive statements of present pain or symptoms made to a doctor employed only to testify do not qualify for admission under the exception to the hearsay rule for statements of bodily condition”, we said: “On the other hand, some courts have adopted the rule that expert witnesses may testify to the information upon which they have relied in reaching their conclusions, and this practice permits a medical doctor to give a general account not only of the facts observed but also of the history of the case, including the patient’s statements as to ³²⁶ injury, past symptoms, and present feelings at the time of the examination.

These courts have explained that the patient’s statements, when presented for this purpose, are considered, not as evidence of the matters stated, and hence not hearsay, but merely as the grounds and reasons for the opinion to be given in evidence by the witness.” But there was no need for us to express a preference between that view and the rule of Parker because we found, in the circumstances there, that although the testimony was erroneously admitted under the Parker rule, the error was harmless. Adams v. Benson, supra, 208 Md. at 269-270 . Cases decided subsequent to Adams , involving application of of the Parker rule, were decided without mention of the less restrictive view noticed in Adams. Wolfinger v. Frey, supra, 223 Md. at 190 ; Connor v. State, supra, 225 Md. at 556-557 ; Wilhelm v. State Traffic Comm., 230 Md. 91, 97 , 185 A. 2d 715 (1962); Rossello v. Friedel, 243 Md. 234, 241-242 , 220 A. 2d 537 (1966); Penn Fruit, Inc. v. Clark, supra, at 140-141.

It was in Candella v. Subsequent Injury Fund, supra, that we next made express comment with respect to the view contrary to Parker . “We recognize that a number of states [ 4 ] make a ³²⁷ distinction which permits the nontreating physician to present his conclusions and the information, including the history received from the patient, upon which he has relied for those conclusions. In those states, the history is not admitted as substantive evidence, but merely for the nonhearsay purpose of explaining the conclusions reached by the physician.” 277 Md. at 124 . Because the circumstances of Candella were not appropriate for a determination of whether to adopt the less restrictive rule as to the testimony of a nontreating physician, we adhered to the rule of Parker in deciding that case. The case sub judice, however, places squarely before us whether we shall continue to adhere to the rule of Parker .

We have decided that we shall not. We hold that a physician, who examines a patient, not for the purpose of treatment, but in order to qualify as an expert witness, may present his medical conclusions and the information, including the history and subjective symptoms, received from the patient which provide the basis for the conclusions. The conclusions are admissible as substantive evidence. The statements made by the patient, as narrated by the physician, are admissible, with a qualifying charge to the jury, only as an explanation of the basis of the physician’s conclusions and not as proof of the truth of those statements. 5 ³²⁸ II Francis E. Shortall, Jr. incurred injuries to his person and damage to his property in a collision between a car driven by him and a tractor driven by Eugene L. Beahm during the course of Beahm’s employment by Atlantic Furniture Products Co., Inc. (Atlantic).

Mr. Shortall and his wife, Martha M. Shortall, instituted an ex delicto action in the Superior Court of Baltimore City against Beahm, Atlantic and others. A jury rendered verdicts against Beahm and Atlantic. It recompensed Mr. Shortall in the amount of $450,000 and awarded him and his wife $50,000 for loss of consortium. Beahm and Atlantic appealed from the judgments to the Court of Special Appeals.

We granted certiorari before decision by that court. Almost four years after the accident, Beahm and Atlantic employed Dr. G. Lee Russo, a specialist in neurosurgery, certified by the American Board of Neurological Surgeons, to examine Mr. Shortall, not for the purpose of treatment, but to qualify the physician to testify as an expert during the pending litigation with respect to Mr. Shortall’s injuries. Dr. Russo testified at the trial at the behest of the Shortalls. His medical conclusions as to the nature and extent of Mr. Shortall’s injuries and the subjective symptoms related by Mr. Shortall which served as the basis for the medical conclusions were received in evidence.

Beahm and Atlantic claim that the admission of this evidence was erroneous. 6 ³²⁹ It is apparent that the narration by Dr. Russo of the subjective symptoms related to him by Mr. Shortall was received as substantive evidence. There was no qualifying instruction with respect thereto. It is also clear that the conclusions of Dr. Russo were reached upon consideration of the subjective symptoms and complaints as to pain related by Mr. Shortall to him and not upon any objective symptoms revealed by the examination. The complaints of Mr. Shortall, which Dr. Russo considered as disabling, were pain behind the left eye or headaches and double vision.

Without these subjective symptoms, Dr. Russo said, there would be no disability despite the objective symptom of some numbness in the face. Under the rule of Parker , both the medical conclusions reached by Dr. Russo and his testimony as to the subjective symptoms serving as the basis for the conclusions would have been inadmissible. Under the rule we now adopt, the conclusions would be properly admissible as substantive evidence and testimony as to the subjective symptoms would be admissible for the limited purpose of showing that Mr. Shortall made them and that they were utilized by the physician to reach his conclusions. Because the testimony concerning the subjective symptoms was in fact admitted without an appropriate explanatory instruction, it was before the jury as substantive evidence, and, therefore, its admission was erroneous. 7 The Shortalls urge that even if the testimony were admitted in error, reversal would not be compelled because of “(D the appellants’ waiver by failure to object or to move to strike and (2) the nonprejudicial nature of such error.” (1) We find, in the circumstances, that objection to Dr. Russo’s testimony was before the court.

The transcript of the proceedings reflects that throughout the testimony of ³³⁰ the physician, Beahm and Atlantic objected to his testimony, including his narration of the medical history and subjective complaints related by Mr. Shortall. Rule 522 b and d. The Shortalls assert that “appellants on cross-examination thoroughly explored and developed the bases of Dr. Russo’s testimony and evaluation of disability but thereafter made no motion to strike.” The cross-examination was obviously designed to show that the challenged testimony was in fact based on medical history or subjective complaints. The benefit of objection to inadmissible testimony is not lost by cross-examination on the subject.

Peisner v. State, 236 Md. 137, 144 , 202 A. 2d 585 (1964) cert. denied 379 U. S. 1001 (1965). (2) As proper challenge was made, we must consider the claim that the error was of a “nonprejudicial nature.” “In the interest of the orderly administration of justice, and to avoid useless expense to the state and to litigants in its courts, it has long been settled policy of this court not to reverse for harmless error.” Johnson & Higgins v. Simpson, 163 Md. 574, 588 , 163 A. 832 (1933). This policy was iterated in Balto. Transit Co. v. Castranda, 194 Md. 421, 439 , 71 A. 2d 442 (1950) and reiterated in Adams v. Benson, 208 Md. 261, 269 , 117 A. 2d 881 (1955).

See Rippon v. Mercantile-Safe Dep., 213 Md. 215, 222 , 131 A. 2d 695 (1957). As a corollary of that policy, it is firmly established that the complaining party has the burden of showing prejudice as well as error. Klingensmith v. Snell Landscape, 265 Md. 654, 662 , 291 A. 2d 56 (1972); State Roads Comm. v. Kuenne, 240 Md. 232, 235 , 213 A. 2d 567 (1965); Adams v. Benson, supra, 208 Md. at 269 ; Balto. Transit Co. v. Castranda, supra, 194 Md. at 439; Johnson & Higgins v. Simpson, supra, 163 Md. at 588 .

If prejudice is shown, this Court will reverse. Smith v. Jones, 236 Md. 305, 312 , 203 A. 2d 865 (1964); Houlihan v. McCall, 197 Md. 130, 140-141 , 78 A. 2d 661 (1951); Heil v. Zahn, 187 Md. 603, 609 , 51 A. 2d 174 (1947). We summed up the policy with respect to the erroneous admission of hearsay evidence in Kapiloff v. Locke, 276 Md. 466, 472 , 348 A. 2d 697 (1975): ³³¹ “It is, of course, true that the erroneous admission of evidence will not justify reversal unless the complaining party can show that the admission was prejudicial to him. ... However, it is also clear that this Court will not hesitate to reverse where hearsay evidence is erroneously admitted and prejudice is shown. ...

The burden of proving prejudice in a civil case is on the complaining party . . . .” (citations omitted). Precise standards for the degree of prejudice required for reversal, have not been, and perhaps cannot be, established. In Rippon v. Mercantile-Safe Dep., supra, 213 Md. at 222 , we noted that the complaining party made no effort to show “unfairness or harm.” In Hance v. State Roads Comm., 221 Md. 164, 176 , 156 A. 2d 644 (1959) we observed: “Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice,” so “substantial prejudice” must be shown. In Rotwein v. Bogart, 227 Md. 434, 437 , 177 A. 2d 258 (1962) we declared that “this Court will not reverse for an error below unless the error ‘was both manifestly wrong and substantially injurious’ ”, quoting 2 Poe on Pleading and Practice (Tiffany’s ed.) § 287, p. 249.

In State Roads Comm. v. Kuenne, supra, 240 Md. at 235 , we spoke in terms of the error having “a prejudicial effect on the outcome of the case.” In I. W. Berman Prop. v. Porter Bros., 276 Md. 1, 11-12 , 344 A. 2d 65 (1975), we repeated the “both manifestly wrong and substantially injurious” language of Rotwein v. Bogart, supra, and added: “An error which does not affect the outcome of the case is ‘harmless error’.” In Dorsey v. State, 276 Md. 638, 659 , 350 A. 2d 665 (1976), we enunciated the rule of harmless error applicable to criminal trials. We traced the history of the effect of an erroneous admission or rejection of evidence. Id., at 646-647 . We concluded: “In modern times, appellate review in all jurisdictions is subject to tenets that a judgment may be affirmed, under certain circumstances, despite errors committed in the conduct of the trial.

Such rules in their application represent appellate ³³² judgments that a retrial is not justified if the error has not affected the rights of the parties. These rubrics, of constitutional, statutory or judicial origin, employ a variety of standards for determining whether a particular error is ‘harmless,’ but all require ‘the resolution of whether the error significantly affected the interests of the complaining party’.” Id., at 647 citing C. McCormick, Evidence, § 183 at 429-430. The short of it is that what constitutes prejudice warranting reversal in the erroneous admission or rejection of evidence is to be determined on the circumstances of each case. We have found that the error here was the unqualified admission of Dr. Russo’s narration of the subjective symptoms related to him by Mr. Shortall.

These symptoms were double vision and pain behind the left eye or persistent headaches. Evidence that Mr. Shortall suffered from these disabilities, however, was properly before the jury apart from the testimony of Dr. Russo. Mr. Shortall, himself, testified about them. Dr. Paul C. Hudson, a neurological surgeon, who first saw Mr. Shortall the day after the accident and continued to follow him and “his difficulties” as a treating physician, discussed in minute detail throughout his extensive testimony the double vision, the pain behind the left eye and the persistent headaches suffered by Mr. Shortall.

It is manifest in light of other evidence on the matter, that the testimony of Dr. Russo which was admitted in error did not significantly affect the interests of Beahm and Atlantic. It was not “substantially injurious” so as to have a prejudicial effect on the outcome of the case. In other words, the error was harmless in the circumstances. We hold that it does not warrant reversal.

See Adams v. Benson, supra, 208 Md. at 269 ; Francies v. Debaugh, supra, 194 Md. at 457-458. Compare Smith v. Jones, supra, 236 Md. at 312; Houlihan v. McCall, supra, 197 Md. at 140-141 ; Heil v. Zahn, supra, 187 Md. at 609 . 8 ³³³ Ill Ramsey Street in the City of Baltimore was a through boulevard running east and west. The accident resulting in this suit occurred on 13 January 1972 about 4:50 p.m. on Ramsey Street in the block between Strieker Street on the east and Parrish Street on the west. At this point Ramsey Street was 40 feet wide — two lanes 20 feet wide divided by a center line.

Parking was permitted on both the north side and the south side of the street, and there were cars parked along the north and south curbs. The speed limit was 30 miles an hour, although the area was unposted. Weather conditions were wet; it had been raining spasmodically since morning. Mr. Shortall was driving his passenger vehicle west on Ramsey Street.

He passed Strieker Street and was approaching Parrish Street. Beahm, an employee of Atlantic, acting within the scope of his employment, was driving a 1970 Diesel tractor eastbound on Ramsey Street. The vehicles collided about 85 feet west of the curb line of Strieker Street. The point of impact was in the westbound lane, 6 feet north of the center line.

Mr. Shortall’s car left straight skid marks beginning 45 feet west of the curb line of Strieker Street and running 38 feet. Beahm’s tractor left skid marks which started 10 feet west of the east curb line of Parrish Street. They ran straight for 44 feet, then veered to the left into the westbound lane and continued 39 feet to the point of impact. The tractor traveled 18 feet after the impact.

Mr. Shortall’s car stopped at the point of impact. Beahm’s version of what occurred was adduced by the Shortalls from a statement given by Beahm to an investigating police officer shortly after the accident and through his testimony at trial as an adverse witness. The substance of it was that the street was wet from a fine mist ³³⁴ of rain. His speed was about 20 miles an hour.

A car pulled out in front of him from a parking space on the south side of Ramsey Street. He blew his horn, tapped the brakes, then applied them “full force.” The tractor skidded, striking Mr. Shortall’s car. He believed the front wheels of the tractor locked. The location of the car that pulled from the curb, where Beahm was when he first saw it and the point of impact as given by Beahm in his statement, in his deposition, and at trial did not jibe. 9 Mr. Shortall testified that when he first saw the tractor it was half way between Gilmore Street, which intersects Ramsey Street west of Parrish Street, and Parrish Street.

The tractor swerved slightly. Shortall thought the tractor driver was attempting to avoid a “dog or a child running out.” Shortall applied his brakes. The tractor driver, Shortall estimated, applied his brakes at about or slightly before the intersection of Parrish and Ramsey Streets, and the tractor went into a skid into the westbound lane with its front wheels in a “locked position.” There was an interval of several seconds between the time that the Shortall car came to a full stop and the time of the impact. Shortall said that he did not see a car pull from the curb, or any traffic eastbound on Ramsey Street in front of the tractor.

He admitted, however, that the focus of his attention was primarily on the tractor. Owen Ray Payton was the driver of the car which pulled from the curb. According to portions of his deposition placed in evidence and his testimony at trial, he was parked facing east on the south side of Ramsey Street about two or three car lengths west of Strieker Street. Because the windows were “fogged up” he opened the car door “and looked all the way back to Gilmor Street for oncoming traffic.” As it was raining hard, he shut the door and “cracked” the window.

He waited three or four minutes before he pulled out after ³³⁵ looking to the rear through the slightly lowered window. He was going to make a left turn onto Strieker Street and stopped his car at an angle with the front end extending about two or three feet into the westbound lane on Ramsey Street. He saw a car approaching westbound on Ramsey Street (Mr. Shortall’s car). Payton was going to “shoot out” and make a quick left hand turn in front of the car but decided to wait.

Just as the car passed him, he heard a “real loud” sound behind him, glanced back and saw the tractor at, or maybe two car lengths past, the intersection of Parrish and Ramsey Streets. He could not judge the distance in feet because “when you’re nervous like that and your life [is] in danger, it is just a split second.” As soon as the westbound motorist passed, Payton made a left turn onto Strieker Street and did not either hear or see the accident. Mr. and Mrs. John F. Kramer were at the scene when the accident occurred. A statement Mrs. Kramer gave the police was put in evidence by the Shortalls.

She had parked her car in front of 1505 Ramsey Street and was walking west on the south side of Ramsey Street a few steps from her car when she heard tires screeching. She saw a blue convertible pulling out from the curb, on the south side of Ramsey Street in front of a skidding truck. “Apparently the truck was attempting to avoid striking the car pulling from the curb.” Mr. and Mrs. Kramer were called by Beahm and Atlantic to testify at the trial. Mrs. Kramer’s testimony-was not at material variance with her statement and Mr. Kramer’s testimony was in substance the same as that of his wife. IV Beahm and Atlantic present three contentions which go to the determination of the jury that their negligence was the proximate cause of the accident.

They claim that the court erred: (1) “by allowing Payton, over objection, to give an estimate that the speed of [the tractor, driven by Beahm] was forty miles per hour”; (2) “by reading to the jury Article 66V2, Section ³³⁶ 11-301, and in explaining to the jury the burden of proof borne by any person who violates that section”; (3) “in not granting [the] motion for directed verdict [made by Beahm and Atlantic] at the conclusion of the entire case”. (1) On cross-examination of Payton by the Shortalls, there came into evidence, after four attempts to obtain an answer which the court found admissible, Payton’s estimate of the speed of the tractor. He was asked, over objection: “When you first saw him, can you tell us what, based on your driving experience, what his speed was?” Payton replied: “About forty miles an hour, skidding.” Motion to strike the answer was denied. As we understand appellants’ argument, they claim that the challenged testimony should have been excluded because (a) it was not established that Payton was a licensed driver either at the time of the accident or at the time of trial; (b) it was not shown that Payton had gained