Candella v. Subsequent Injury Fund

Levine, J., delivered the opinion of the Court. This appeal concerns the admissibility of expert opinion in a workmen’s compensation case offered by a nontreating psychiatrist whose testimony was based solely on a medical history furnished by the claimant. This evidence, admitted before the Workmen’s Compensation Commission (the commission), led to an award in favor of the employee against appellees: the employer, the insurer and the Subsequent Injury Fund. On appeal, substantially the same testimony was presented to the Circuit Court for Anne Arundel County (Childs, J.), which granted a written motion filed by the employer and insurer to strike the disputed evidence produced on both occasions.

Without this testimony, expert evidence to support an award was lacking; consequently, the court entered judgment for appellees. We granted a writ of certiorari prior to consideration of the case ¹²² by the Court of Special Appeals, and for reasons that follow, we shall affirm the decision of the circuit court. While employed as a maid at the Friendship International Airport Hotel on February 12, 1971, appellant suffered an electric shock when she attempted to turn off a vacuum cleaner. She suffered no physical injury as a consequence, but claimed to experience myriad symptoms of an emotional nature for which she sought workmen’s compensation.

Although she received psychiatric treatment intermittently for some three years, on both an inpatient and outpatient basis, none of the psychiatrists who had treated her during this period testified before the commission or in the circuit court. Instead, appellant called Dr. Harry A. Teitelbaum, a psychiatrist to whom she had been referred by her attorney. Dr. Teitelbaum saw her on a total of seven occasions, four of which preceded the commission hearing, but not for the purpose of treatment. He consistently expressed the view in his written reports that appellant suffered from “psychoneurosis, post-traumatic, with severe emotional disturbance following electric shock.. .,” and testified accordingly before the commission and the circuit court.

This opinion was controverted at the commission and circuit court hearings by a psychiatrist produced by appellees, who testified that appellant suffered from “a very severe personality disorder” which was not causally related to the electric shock and, in fact, antedated it. In 1962, appellant, who suffered from congenital pulmonic stenosis, had undergone open-heart surgery at the Naval Medical Center at Bethesda, Maryland. In consequence of this prior history and Dr. Teitelbaum’s opinion that as a result of the electric shock episode, appellant had sustained “an overall psychiatric disability of 75%,” which he judged to be permanent, the commission found that appellant had incurred a 60% permanent partial industrial disability. Of this total, 50% was attributable to the accidental injury, manifested by the psychiatric condition, which became the responsibility of the employer and insurer.

The remaining 10%, charged to the Subsequent Injury Fund, ensued from the further finding that the previous heart impairment was ¹²³ a hindrance to appellant’s employment, resulting in a permanent partial disability that was “substantially greater by reason of the combined effects of the impairment and subsequent injury.” See Maryland Code (1957, 1964 Repl. Vol.) Art. 101, § 66. The circuit court overturned the decision of the commission, ruling that Dr. Teitelbaum’s testimony on both occasions was inadmissible there, since “his findings were based largely upon the history [furnished by appellant] and also upon her representations of symptoms which she had experienced.” (emphasis in original). In striking the testimony, the court rested its decision on the principle that the opinion of a physician is inadmissible when based upon the case history supplied by a patient, not for the purpose of obtaining treatment, but to qualify the physician as a medical expert.

Since the commission was therefore left without “medical evidence before it to arrive at its allocation of percentage of the injury,” and the remaining nonmedical testimony was “insufficient to sustain the findings and order of the [c]ommission,” the court found “that [appellant] sustained no permanent industrial disability to her body as the result of the electric shock she sustained.” For essentially the same reasons, the Subsequent Injury Fund was relieved of the liability which had been fastened upon it by the commission. We have applied in this State the universally recognized principle that an attending physician may testify as to the medical history related to him by his patient, and may also state his conclusions reached on the strength of that history. Adams v. Benson, 208 Md. 261, 266-67 , 117 A. 2d 881 (1955); Yellow Cab Co. v. Henderson, 183 Md. 546, 552-53 , 39 A. 2d 546 (1944); see Riddle v. Dickens, 241 Md. 579, 581 , 217 A. 2d 304 (1966). The same proposition has been applied in cases where the medical witness is a psychiatrist, Wilhelm v. State Traffic Comm., 230 Md. 91, 97 , 185 A. 2d 715 (1962); Connor v. State, 225 Md. 543, 556-57 , 171 A. 2d 699 , cert. denied, 368 U. S. 906 (1961); and in workmen’s compensation cases, see Fisher Body Division v. Alston, 252 Md. 51, 54-55 , 249 A. 2d 130 (1969).

Such testimony is admitted under an ¹²⁴ 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, Rossello v. Friedel, 243 Md. 234, 241-42 , 220 A. 2d 537 (1966); Wilhelm v. State Traffic Comm., supra, 230 Md. at 97 ; see Wolfinger v. Frey, 223 Md. 184, 190-91 , 162 A. 2d 745 (1960); Parker v. State, 189 Md. 244, 248-50 , 55 A. 2d 784 (1947); 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. We recognize that a number of states make a distinction which permits the nontreating physician to present his conclusions and the information, including the history received from the patient,