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Dietzeman v. Peterson

Decided: January 23, 1984.

JOHN B. DIETZEMAN, PLAINTIFF,
v.
JOHN E. PETERSON AND REBECCA C. HOWE, DEFENDANTS AND THIRD PARTY PLAINTIFFS, V. WALTER CLEARY, III, THIRD PARTY DEFENDANT



MacKenzie, J.s.c.

Mackenzie

[196 NJSuper Page 97] This opinion considers the interplay between and the reconciliation of Evid.R. 56(2) and Evid.R. 63(12). The specific issue is whether a non-treating physician may be allowed to testify before a jury concerning the history of past and present complaints made to him by the injured plaintiff during the course of a physical examination. This is a bodily injury, automobile negligence action.

On January 24, 1981 plaintiff was a passenger in an automobile owned by Rebecca C. Howe and driven by John E. Peterson, which collided with a stationary pick-up truck owned by Walter Cleary, III. The truck had been disabled and left unattended by Mr. Cleary on the shoulder of Rt. 10 in Parsippany, New Jersey. The impact caused serious head and facial injuries to plaintiff. While hospitalized, plaintiff was treated for a concussion by a neurologist and for a fractured mandible by an orthopedic surgeon.

This medical treatment was successful; plaintiff was able to make a complete recovery from the concussion and fracture. About a month or so after the accident, however, the plaintiff began to feel occasional, mild lower back pain. According to his testimony, the pain in his back began to increase in severity and frequency.

On April 8, 1982, at the direction of his father's automobile insurance carrier,*fn1 plaintiff visited the office of Dr. Arthur Tiger. Dr. Tiger is an orthopedic surgeon. The consultation with Dr. Tiger was not for the purpose of treatment, but rather for a determination as to whether the P.I.P. carrier would continue to accept the obligation to provide future medical treatment. Dr. Tiger first obtained a history from the plaintiff, examined him, and also administered several diagnostic tests. The findings of the examination and the tests were somewhat ambiguous, showing no conclusive indication of pathology. The orthopod's initial medical impression was of a soft tissue injury to the lower back.

But, because he was concerned about the continued existence of back complaints some 14 months after the trauma, Dr. Tiger ordered a Computerized Axial Tomography test (CAT Scan). Upon reviewing the results of the CAT Scan, Dr. Tiger reached

a diagnosis that the plaintiff's back problems were the result of a central herniation at the L-5, S-1 disc. X-rays later disclosed a narrowing of the intervertebral space at L-5, S-1. Based on the history given by plaintiff, Dr. Tiger related the disc injury causally to the vehicular accident. A report which includes his observations, plaintiff's complaints and his findings was sent to the P.I.P. carrier and made available to counsel for the parties to this action. A later visit to that same orthopod revealed additional problems regarding complaints of pain radiating down the legs.

As part of the discovery process, plaintiff was also examined by Dr. Barry Levine, another orthopedic surgeon, at the request of the attorney for Mr. Cleary. This examining physician did not concur with the previous diagnosis of a herniated disc. Nor did this doctor agree that plaintiff's complaints were consistent with the symptomology of a central herniated disc. His examination of the CAT Scan disclosed only a gentle bugling of the disc L-5, S-1. In addition, the absence of significant lower back pain a short time after the motor vehicle incident led this orthopod to deny causal relationship between the organic changes and the trauma.

At trial, plaintiff sought to elicit opinion testimony from Dr. Tiger*fn2 of a disc herniation and of a causal relationship to the accident of January 24, 1981. Defendants objected as hearsay to the admission of any statements made by plaintiff to a non-treating physician. Plaintiff contended that Evid.R. 56(2) permits this testimony.

A hearing out of the presence of the jury was conducted. Evid.R. 8(1). Dr. Tiger testified in the absence of the jury that plaintiff had stated the back pain was felt immediately after the accident. This discomfort as explained to the physician was

supposedly not a matter of immediate concern to the plaintiff due to his experiencing greater pain in other parts of his body, particularly in his lower jaw, which had been wired to the upper jaw. The plaintiff had further relayed that the dull, aching back pain had gradually increased in severity over time and had become accompanied occasionally by sharp, stabbing pain on the left ...


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