The entire controversy on this appeal concerns the medical testimony of Dr. Bacon. At the trial, he testified that Miss Ritter had consulted him on March 16, 1961.
Miss Ritter's counsel then asked: "Q. And what did she relate to you at that time Doctor?"
At this point, appellant's counsel objected to Dr. Bacon testifying as to what subjective symptoms Miss Ritter related to him, on the ground that since Miss Ritter had already retained counsel for the purpose of commencing an action in relation to the mouse-in-the-bottle episode, her visit to Dr. Bacon could only be viewed as undertaken for the purpose of securing expert testimony to support her cause of action, rather than seeking treatment, and that under the Kath rule, testimony by a physician relating to a party's report of "subjective" symptoms to him is inadmissible unless the consultation with the physician is undertaken solely for the purpose of treatment.
The trial court overruled appellant's objection.
Dr. Bacon then testified as to Miss Ritter's report to him as to the details of the episode, and her feelings and responses immediately surrounding the event. He further testified as to Miss Ritter's report to him in relation to her continuing symptoms of avoidance of nontranslucent liquids, inability to sleep, troubled dreams, and fear of mice. Dr. Bacon concluded to a reasonable medical certainty that these indicia of psychological stress were causally related to the episode of March 2, 1961.
The first issue presented on this appeal is whether Coca-Cola's claim of error was properly preserved for appeal to this court.
While appellant did not in fact elaborate his allegation of evidentiary error by means of oral argument or brief, it is clear that he was not given an opportunity to do so, though he made such request.
Appellant's only notice of the July 2d hearing set for argument on motions after verdict was contained in the respondent's motion papers. Although the appellant asked the court to set a time for argument on its motion, and to provide an opportunity to be heard, the trial court did not directly apprise the appellant's counsel of the time for argument. Because counsel was denied an opportunity to present his claim of error as the basis for his motion for a new trial, we exercise our discretionary power under sec. 251.09, Stats., to consider the merits of appellant's claim.
Therefore, the second, and major, issue raised on this appeal is: Was Dr. Bacon's testimony relating to Miss Ritter's report of her feelings, anxieties, and dream content, properly admitted into evidence?
In Kath this court held that a physician may not testify as to statements made by a patient to him regarding subjective symptoms connected with his injury, if in addition to seeking treatment for his injury the patient is motivated to seek consultation for the purpose of obtaining expert medical
In La Fave v. Lemke
In Thompson v. Nee
In Plesko v. Milwaukee, supra, testimony of a physician who was first consulted four years before trial but one year
In Rasmussen v. Metropolitan Casualty Ins. Co.
Essentially under these rulings, the holding in Kath has been retained while at the same time allowing a doctor to testify as to a patient's subjective symptoms recited to the doctor during a consultation, which consultation, according to evidence in the record, by inference, may have been arranged for the twofold purpose of treatment plus examination prior to testifying but concerning which the trial court has ruled that the sole motivation of the claimant in arranging for the consultation was treatment. We see no logic in continuing in adherence to the Kath rule and conclude that if the trial court determines that a consultation is made by a claimant with a physician for the bona fide purpose of treatment, the fact that the claimant also desires to utilize the physician as a witness on the trial in relation to his injury will not preclude the physician from testifying as to the patient's report of his subjective symptoms or from predicating medical conclusions upon such reports.
Such a change in the Kath rule simply recognizes the realities of modern medical practice in the clinical diagnosis of a patient's condition alleged to be due to the injury-causing event and prescribing treatment for such condition.
The rationale of the Kath rule regards statements made by the patient to the physician as hearsay and in the nature of self-serving declarations. Kath allows testimony concerning such statements where made to a physician while undergoing treatment, but excludes the testimony where dual motivation is established. This distinction is unrealistic. If the testimony on statements made in one context is admissible then logically such testimony should also be admissible where the statements are made in the other context.
As long as a patient goes to a physician with the bona fide purpose of receiving treatment, the basic desire of a patient to get well, we believe, will generally motivate him to tell the truth and this is sufficient reason to allow the attending physician to testify about statements made to him which may touch on his history and his subjective symptoms. Cross-examination and argument are available to opposing counsel as a means of testing such testimony. Under the circumstances of this case, Miss Ritter can be deemed to have only been seeking psychotherapeutic treatment when she consulted with Dr. Bacon on March 16, 1961. There was no testimony to the contrary. The injury-producing event occurred two weeks prior to the consultation. On the day after the incident, Miss Ritter had consulted Dr. Duncan, who informed her that she had sustained no toxic or physiological injury. When her symptoms persisted, Miss Ritter then consulted Dr. Bacon as a psychiatrist, with a
Under Kath, either as applied prior to this decision or as modified herein, it is clear that Dr. Bacon could properly testify as to Miss Ritter's statements to him relating to her subjective emotional experience, and could properly predicate his medical conclusion as to the causal relationship between the episode in issue and her emotional and psychological distress upon such reports.
Appellant's request for a new trial in the interests of justice must therefore be denied.
By the Court.—Judgment affirmed.