{ "id": 8527494, "name": "JOHN HENRY MITCHEM v. LINDA HICKS SIMS and ARTHUR THOMAS SIMS", "name_abbreviation": "Mitchem v. Sims", "decision_date": "1982-01-19", "docket_number": "No. 8129SC456", "first_page": "459", "last_page": "463", "citations": [ { "type": "official", "cite": "55 N.C. App. 459" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "248 S.E. 2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555418 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0613-01" ] }, { "cite": "204 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556131 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/21/0380-01" ] }, { "cite": "254 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548134 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0143-01" ] }, { "cite": "181 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555980 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0546-01" ] }, { "cite": "192 S.E. 2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550012 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0242-01" ] }, { "cite": "192 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566521, 8566429, 8566399 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0430-03", "/nc/282/0430-02", "/nc/282/0430-01" ] }, { "cite": "191 S.E. 2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550043 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0249-01" ] }, { "cite": "139 S.E. 2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569848 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0317-01" ] }, { "cite": "255 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "599" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 15", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551763 ], "year": 1979, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0015-01" ] }, { "cite": "256 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "202" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "52 A.L.R. 2d 1384", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1957, "opinion_index": 0 }, { "cite": "249 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564743 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0095-01" ] }, { "cite": "243 S.E. 2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "36 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551566 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/36/0130-01" ] } ], "analysis": { "cardinality": 525, "char_count": 10030, "ocr_confidence": 0.807, "pagerank": { "raw": 1.5347732454267742e-07, "percentile": 0.6717831811816055 }, "sha256": "e7713b1fe8a317f87ce08d73a8f6a7d7ca55dc148736b684891729e39fd67906", "simhash": "1:3160dc3a3c8e99fe", "word_count": 1625 }, "last_updated": "2023-07-14T17:04:47.759339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Hill concur." ], "parties": [ "JOHN HENRY MITCHEM v. LINDA HICKS SIMS and ARTHUR THOMAS SIMS" ], "opinions": [ { "text": "VAUGHN, Judge.\nDefendants\u2019 assignments of error arise from testimony by Dr. James L. Byers, a chiropractor who treated plaintiff for pain he was experiencing after a motor vehicle collision with defendant Linda Sims. Defendants contend that the court erred in allowing Dr. Byers to testify as to his opinion of plaintiffs alleged disability and its causation. Defendants further argue that Dr. Byers\u2019 testimony was insufficient evidence of permanent injury to warrant the admission into evidence of mortuary tables and the court\u2019s instruction on damages for permanent injury. We find no merit in defendants\u2019 contentions.\nDefendants first except to the court permitting the following testimony:\n\u201cQ. Based upon your examination and treatment, what disability, if any, would you say John Mitchem will suffer from the injuries he related to you?\nA. In my opinion he will have twenty to twenty-five percent disability in his shoulder and neck region.\u201d\nDefendants object to the form of the question, arguing it is not stated in terms of reasonable chiropractic certainty. They also argue that no evidence of disability had been presented which could serve as a foundation for the question.\nChiropractors are recognized as experts in their field and, when properly qualified, allowed to testify as to diagnosis, prognosis, and disability. G.S. 90-157.2; Currence v. Hardin, 36 N.C. App. 130, 243 S.E. 2d 172, aff\u2019d., 296 N.C. 95, 249 S.E. 2d 387 (1978). See also Annot., 52 A.L.R. 2d 1384 (1957). Both parties to the present action stipulated that Dr. Byers was an expert in the field of chiropractic medicine. The court, therefore, properly permitted plaintiff\u2019s question concerning Dr. Byers\u2019 opinion of disability. The traditional form of such a question is phrased in terms of an \u201copinion satisfactory to yourself based upon reasonable medical certainty.\u201d We conclude that the present question asking for a chiropractor\u2019s expert opinion based upon his personal examination and treatment necessarily called for an opinion based upon reasonable medical certainty. Defendant\u2019s argument raises only semantic technicalities.\nFurthermore, plaintiff had laid a proper foundation prior to asking the question. Plaintiff testified that he continues to have headaches and ringing in his ears. He has trouble sleeping and must take medication. Plaintiff testified he did not have these health problems prior to the accident. Dr. Byers testified that he examined plaintiff a month after the accident. He took x-rays showing misalignment of plaintiffs spine along his neck, rib cage section, and lower back. After one and a half months of treatment, the pain in plaintiffs lower back had subsided. At the end of 53 treatments, however, plaintiff still had limited motion and experienced pain in his shoulder and neck region. We conclude that the question of Dr. Byers was proper, and the assignment of error is overruled.\nDefendants next except to the admission of a hypothetical question addressed to Dr. Byers:\n\u201cQ. Dr. Byers, if the jury should find from the evidence presented, and by its greater weight, that John Mitchem was involved in an automobile accident on November 15, 1978, that he was injured while in his truck when the truck was hit by the defendant \u2014 that the left side of his truck was hit by the left side of the defendant\u2019s car, and that his car traveled approximately twenty feet after the collision occurred and that he was knocked around in his car at the time of the collision, and that Mr. Mitchem had no problems with his neck and shoulder prior to November 15, 1978, do you have an opinion satisfactory to yourself as to whether all these ailments that he related to you could or might have been caused by this accident?\u201d\nDefendants argue that the question asks not for expert opinion but for mere speculation since it is premised on ailments as related by plaintiff to the doctor. There is no error, however, in allowing a medical expert to base his opinion in part on the medical history he obtains from the patient himself. \u201cStatements made by a patient to his physician for the purposes of treatment . . . are \u2018inherently reliable\u2019. . . .\u201d Booker v. Medical Center, 297 N.C. 458, 479, 256 S.E. 2d 189, 202 (1979). This assignment of error is overruled. Defendants\u2019 arguments concerning Dr. Byers\u2019 response to the hypothetical question cannot be heard since defendants failed to make a timely motion to strike at trial or to note any exception in the record. See Young v. Glenn, 42 N.C. App. 15, 20, 255 S.E. 2d 596, 599 (1979).\nDefendant next argues that the court erred in admitting into evidence mortuary tables found in G.S. 8-46. We disagree.\nIt is well established that before evidence of life expectancy under G.S. 8-46 can be introduced, there must be evidence to a reasonable certainty of permanent injury. Gillikin v. Burbage, 263 N.C. 317, 139 S.E. 2d 753 (1965); Teachey v. Woolard, 16 N.C. App. 249, 191 S.E. 2d 903, cert. denied, 282 N.C. 430, 192 S.E. 2d 840 (1972); McCoy v. Dowdy, 16 N.C. App. 242, 192 S.E. 2d 81 (1972).\nWhere plaintiff suffers from an objective injury, a jury is capable of determining whether or not the injury is permanent in nature. Gillikin v. Burbage, supra. Where the injury complained of is subjective, however, and of such nature that a layman cannot with reasonable certainty know whether the injury is permanent, it is necessary to have medical expert testimony. Callicutt v. Hawkins, 11 N.C. App. 546, 181 S.E. 2d 725 (1971).\nIn the present cause, plaintiff suffers from subjective pain. Evidence of his disability, however, is not limited to plaintiff\u2019s own credibility. Dr. Byers testified that from a chiropractic viewpoint, plaintiff has reached maximum recovery: \u201cAlthough he has received all the treatment that I can give him that will benefit him, it is still my opinion that he has a twenty to twenty-five percent disability.\u201d\nDr. Byers never used the specific word \u201cpermanent\u201d to describe plaintiffs injuries. His testimony, however, indicates that the lasting duration of plaintiff\u2019s disability is certain or probable. Compare with Garland v. Shull, 41 N.C. App. 143, 254 S.E. 2d 221 (1979). We hold there was sufficient evidence of permanent injury to sustain the introduction of mortuary tables. See also Teachey v. Woolard, supra.\nFinally, defendant argues that the court erred in instructing the jury that it could assess damages for permanent injury to and future pain and suffering of plaintiff. We disagree.\nTo warrant instructions permitting an award for permanent injury and future pain and suffering, there must be evidence that there is a reasonable certainty of permanent injury and future pain and suffering and that such disabilities proximately resulted from defendant\u2019s wrongful act. Callicutt v. Hawkins, supra.\nWe have already held that plaintiff presented evidence tending to establish a permanent injury with reasonable certainty. Because Dr. Byers testified that the disability in plaintiffs shoulder and neck region was caused by limited motion and pain, we also find evidence of future pain and suffering. We next address the issue of causation. In answer to the hypothetical question set out earlier, Dr. Byers stated he did have an opinion: \u201cIn my opinion, this type of accident can cause this type of injury in the neck and shoulders.\u201d In Smith v. Hospital, 21 N.C. App. 380, 204 S.E. 2d 546 (1974), this Court held that \u201ccould or might have\u201d refers to probability rather than mere possibility. By stating that a car collision such as that between plaintiff and defendant can cause injuries similar to plaintiff\u2019s, Dr. Byers presented evidence sufficient to permit a jury to find a causal connection between the 1978 accident and plaintiff\u2019s present disability. Compare with Caison v. Cliff, 38 N.C. App. 613, 248 S.E. 2d 362 (1978). We also note plaintiff\u2019s testimony that before the accident, he was not suffering from his current health problems. We conclude that the court properly instructed the jury on its right to assess damages for permanent injury and future pain and suffering and to consider plaintiff\u2019s life expectancy in so doing.\nAffirmed.\nJudges Webb and Hill concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Hamrick, Bowen, Nanney and Dalton, by Louis W. Nanney, Jr., for plaintiff appellee.", "John B. Whitley and George C. Collie, for defendant appellants." ], "corrections": "", "head_matter": "JOHN HENRY MITCHEM v. LINDA HICKS SIMS and ARTHUR THOMAS SIMS\nNo. 8129SC456\n(Filed 19 January 1982)\n1. Evidence \u00a7 50.1\u2014 medical opinion \u2014form of question proper\nWhere a proper foundation had been laid, asking a chiropractor\u2019s opinion of a plaintiff\u2019s disability based upon his personal examination and treatment of plaintiff, even though not phrased in the traditional form, called for an opinion based upon reasonable medical certainty and was proper.\n2. Evidence \u00a7 50.2\u2014 hypothetical question \u2014 cause of injury\nA hypothetical question which allowed a medical expert to base his opinion in part on the medical history obtained from the patient himself was proper.\n3. Damages \u00a7 13.6 \u2014use of mortuary table\nWhere there was testimony indicating that injuries received by plaintiff in an automobile accident were permanent in nature, it was not error to admit into evidence mortuary tables found in G.S. 8-46.\n4. Damages \u00a7\u00a7 16.4, 17.1\u2014 instructions on damages for permanent injury and future pain and suffering proper\nThe trial court did not err in instructing the jury that it could assess damages for permanent injury to and future pain and suffering of plaintiff in a personal injury action, where the evidence tended to establish a permanent injury with reasonable certainty and where the evidence was sufficient to permit a jury to find a causal connection between the automobile accident and plaintiffs present disability.\nAPPEAL by defendants from Lamm, Judge. Judgment entered 2 February 1981 in Superior Court, RUTHERFORD County. Heard in the Court of Appeals 5 January 1982.\nThe appeal is from a judgment awarding plaintiff damages for personal injuries sustained in a motor vehicle collision.\nHamrick, Bowen, Nanney and Dalton, by Louis W. Nanney, Jr., for plaintiff appellee.\nJohn B. Whitley and George C. Collie, for defendant appellants." }, "file_name": "0459-01", "first_page_order": 491, "last_page_order": 495 }