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Shpigel v. White12/10/1999
edical history" segment of the initial consultation note advises that Shpigel "was involved in a motor vehicle accident one year ago in which he injured his neck but from which he recovered without sequelae" and that " e had been followed through this office for that injury as well." Shpigel's purpose in proffering the P.A.'s records concerning his examinations, his visits for physical therapy, and the disability certificates is to prove that he was totally disabled from May 22 through June 17, 1996, with resulting economic and non-economic damages.
In order to fall within the Rule 5-803(b)(6) exception to the hearsay rule the evidence must be trustworthy. Further, relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury." Rule 5-403. Here, the causal connection between the accident of May 21, 1996, and the damages claimed by Shpigel presents a somewhat complicated medical question on which expert testimony is required in order to support a finding that the accident of May 21, 1996, caused a total disability.
The seminal case in this state is Wilhelm v. State Traffic Safety Commission, 230 Md. 91, 185 A.2d 715 (1962). There we held that expert testimony was required in order to establish a causal nexus between a motor vehicle collision and "emotional disturbances in [the plaintiff] sufficient to evoke, subconsciously, grossly exaggerated symptoms." Id. at 101, 185 A.2d at 719. Expert testimony was also required to establish a nexus "between the accident and abdominal and back pains associated with the [plaintiff's] menses." Id. No expert testimony, however, was required in order to prove the nexus between the accident and a loss of pigmentation on the plaintiff's forehead at the site where her head struck a sun visor in the accident and where she had a bruise for some three or four months. Id. at 103, 185 A.2d at 721.
Maryland appellate cases on this issue have recently been reviewed for the Court of Special Appeals by Judge Thieme in Hunt v. Mercy Medical Center, 121 Md. App. 516, 538-42, 710 A.2d 362, 373-75 (1998), and by Judge Moylan in S.B. Thomas, Inc. v. Thompson, 114 Md. App. 357, 376-81, 689 A.2d 1301, 1310-13 (1997).
Although recognizing that these cases are fact specific the court in S.B. Thomas undertook a distillation, saying:
"A genuine jury issue as to the causal relationship between an earlier injury and a subsequent trauma may sometimes be generated, even in the absence of expert [medical] testimony, when some combination of the following circumstances is present: 1) a very close temporal relationship between the initial injury and the onset of the trauma; 2) the manifestation of the trauma in precisely the same part of the body that received the impact of the initial injury; 3) as in Schweitzer v. Showell, [19 Md. App. 537, 313 A.2d 97 (1974),] some medical testimony, albeit falling short of a certain diagnosis; and 4) an obvious cause-and-effect relationship that is within the common knowledge of laymen." Id. at 381-82, 689 A.2d at 1313. In this case there is no "obvious cause-and-effect relationship" between the accident and the claimed total disability "that is within the common knowledge of laymen."
Here, the issue is whether the records of the P.A., in and of themselves, are admissible to supply the necessary medical opinion. The same factors that underlie the holdings on the need for expert medical testimony on causation are also relevant to whether that expert testimony is to be presented through a live witness or through a business record. In this case the records of the P.A. reflect that Shpigel previously suffered a ne
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