579. For ordinary testimony.

580. Rule denying additional pay for opinion.
581. Rule allowing additional pay for opinion.

I. EXPERT TESTIMONY.

544. Limitations of the subject.-The attempt will not here be made to treat the general subject of expert testimony. That is an independent and well-defined subject connected with medical jurisprudence only by the fact that medical men constitute a large class of wit nesses by whom expert testimony is given. Even those principles which are common both to medical expert testimony and to other expert testimony in general have been treated as belonging to the general subject; those here considered being only such as are specially applicable to medical testimony, or specially affected by their application to such testimony.

545. Qualifications of expert. That a person is a practising physician is generally sufficient, in the absence of conflicting proof, to qualify him to give evidence as a medical expert.1 Physicians and surgeons are presumed to be acquainted with all matters pertaining to their profession, and to be competent to testify concerning them;2 and their opinions are admissible in evidence upon questions that are particularly and legitimately embraced in their profession and practice. It is not necessary that the medical witness should be a specialist, or should have made a speciality of the particular disease involved in an inquiry, to render his testimony admissible as that of an expert; and a person having the requisite qualifications is not

3

'Livingston v. Com. 14 Gratt. 592; Washington v. Cole, 6 Ala. 212; DePhue v. State, 44 Ala. 32; Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432, 16 N. E. 145; Olmsted v. Gere, 100 Pa. 127; Coyne v. Manhattan R. Co. 42 N. Y. S. R. 617, 16 N. Y. Supp. 686.

Robinson v. Marino, 3 Wash. 434, 28 Am. St. Rep. 50, 28 Pac. 752; Hathaway v. National L. Ins. Co. 48 Vt. 335; Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432, 16 N. E. 145.

Hathaway v. National L. Ins. Co. 48 Vt. 335. And see Supreme Tent, K. of M. v. Stensland, 206 Ill. 124, 68 N. E. 1098.

But the mere fact that a person was a regularly licensed and practising physician is not alone sufficient to qual

ify him to give an opinion as to the cause of symptoms of a patient, where, under the law, a certain class of physicians might have been licensed and permitted to practise without any regard whatever to their knowledge or learning. State v. Simonis, 39 Or. 111, 65 Pac. 595.

And the fact that a witness is a physician does not entitle him to give an opinion as to the possibilities of illuminating gas causing death, and its effects on health. Emerson v. Lowell Gaslight Co. 6 Allen, 146, 83 Am. Dec. 621.

'Hathaway v. National L. Ins. Co. 48 Vt. 335; O'Neil v. Dry Dock, E. B. & B. R. Co. 27 Jones & S. 123, 15 N. Y. Supp. 84; Hardiman v. Brown, 162 Mass. 585, 39 N. E. 192; Siebert v. People, 143 Ill. 571, 32 N. E. 431; Young

debarred from giving an opinion, in the absence of a statutory prohibition, by the fact that he is not a practitioner, licensed or otherwise; and his reputation has nothing to do with his competency. Nor will the opinion of a physician, offered in evidence, be rejected because his only information concerning the subject was derived from books, and not from observation or experience; or because the information upon which it is based was obtained by means not in common use with the profession. And in determining the qualifications of a physician as an expert, the extent of his reading in his profession may be considered, as well as his experience. A physician's own opinion as to his qualifications as an expert is not controlling upon the court;10 though effect will be given to it in connection with other evidence on the question.11 A statute providing that

v. Makepeace, 103 Mass. 50; Seckinger v. Philibert & J. Mfg. Co. 129 Mo. 590, 31 S. W. 957; Castner v. Sliker, 33 N. J. L. 95; Kelly v. United States, 27 Fed. 616. And see Horton v. Green, 64 N. C. 64.

"New Orleans, J. & G. N. R. Co. v. Allbritton, 38 Miss. 242, 75 Am. Dec. 98; Tullis v. Kidd, 12 Ala. 648; Stone v. Moore, 83 Iowa, 186, 49 N. W. 76; Roberts v. Johnson, 58 N. Y. 613; People v. Rice, 159 N. Y. 400, 54 N. E. 48; State v. Speaks, 94 N. C. 865; State v. Merriman, 34 S. C. 17, 12 S. E. 619; Sebastian v. State, 41 Tex. Crim. Rep. 248, 53 S. W. 875; Mason v. Fuller, 45 Vt. 29. And see Washington v. Cole, 6 Ala. 212.

But one who is not licensed as a physician is prima facie incompetent to express a medical opinion; and his testimony should be received with great caution, and only after the court has become fully satisfied that, upon the subject as to which his opinion is required, he is fully competent to speak. People v. Rice, 159 N. Y. 400, 54 N. E.

48.

And the fact that a witness was a member of a board of health, and that he was a diagnostician of contagious diseases connected with the contagious bureau of the board, does not show him to be a medical expert qualified to give an opinion in an action for personal injuries; and the exclusion of evidence to that effect is not error. Brown v. Third Ave. R. Co. 19 Misc. 504, 43 N. Y. Supp. 1094.

'DePhue v. State, 44 Ala. 32.

And the fact that physicians giving their opinions in evidence as to the

mode of death of a deceased person, in a prosecution for his murder, were in the employ of insurance companies which had policies of insurance on the life of the deceased, may go to their credibility, but does not render their opinions incompetent. State v. Baptiste, 26 La. Ann. 134.

'Whitehouse v. Travelers Ins. Co. 7 Ins. L. J. 23; People v. Phelan, 123 Cal. 551. 56 Pac. 424; Jackson v. Boone, 93 Ga. 662, 20 S. E. 46; Siebert v. People, 143 Ill. 571, 32 N. E. 431; Hardiman v. Brown, 162 Mass. 585, 39 N. E. 192; State v. Wood, 53 N. H. 484; State v. Terrell, 12 Rich. L. 321.

A physician and surgeon, not only familiar with fractures, but with the X-ray process of determining whether a fracture had ever existed, is as well qualified to express an opinion as to the existence of a fracture from an examination made in this way as are ordinary experts who made their examination by means more commonly used in the profession. Miller v. Dumon, 24 Wash. 648, 64 Pac. 804.

"Hardiman v. Brown, 162 Mass. 585, 39 N. E. 192.

10 Fredrickson v. State, 44 Tex. Crim. Rep. 288, 70 S. W. 754.

"Ibid.; Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221. And see State v. Sheets, 89 N. C. 543.

And a practising physician who had been called to see a few cases of gunshot wounds, but testified that he could not, by looking at the wound suffered by the deceased, tell whether it was made by a rifle ball or a pistol ball, is competent, in a trial for the murder of such person, to describe the character of the

no person practising physic and surgery shall testify in a professional capacity unless he shall have received a diploma from some incorporated medical society or college, or shall be a member of some county medical society legally organized, applies to the opinions of medical men called for on questions of science and skill as experts, and not to the testimony of medical men as to facts upon which any unprofessional witness might speak.12 The question whether a physician is competent to testify as an expert is one for the decision of the court, and not for the jury.18 And an objection to testimony of medical witnesses, that it is incompetent, does not raise the question whether or not they had the proper qualifications of medical experts required by law. 14

546. Basis of the opinion.-As in other cases of opinion evidence, the opinion of a medical expert must be founded on a proper basis of fact, and is not admissible unless it is so founded.15 It may be based, however, on his acquaintance with the person whose condition is under investigation;16 and a physician who frequently met a person, and was well acquainted with him, and frequently attended him, has sufficient knowledge to form an intelligent opinion as to whether a given condition resulted from illness or injury.17 And a medical opinion may also be based upon a medical examination;18 and though the physician was called, and the examination made, a long time be fore or afterwards, he may testify as to the condition of the person

wound, but not to give his opinion that the wound was caused by a rifle ball. Prince v. State, 100 Ala. 144, 46 Am. St. Rep. 28, 14 So. 409.

12 Montgomery v. Scott, 34 Wis. 338. But the qualification of a physician under such a statute may properly be proved by oral testimony of the physician himself, without producing his diploma, or proved by record evidence of the incorporation of the institution or society which granted it, or that he is a member of one of the societies designated in the statute. McDonald v. Ashland, 78 Wis. 251, 47 N. W. 434.

13 Emerson v. Lowell Gaslight Co. 6 Allen, 146; Tullis v. Kidd, 12 Ala. 648; Budd v. Salt Lake City R. Co. 23 Utah, 515, 65 Pac. 486.

And the decision of the trial court as to the competency of a medical expert to testify, though not conclusive, will not be disturbed unless clearly shown to be erroneous as a matter of law. Germania L. Ins. Co. v. Lewin, 24 Colo. 43, 65 Am. St. Rep. 215, 51 Pac. 488.

Or unless a palpable abuse of discretion appears. Budd v. Salt Lake City R. Co. 23 Utah, 515, 65 Pac. 486.

If there is any evidence to sustain the conclusion of the court that a witness was a medical expert, it is final, and not subject to review. State v. Wilcox, 132 N. C. 1120, 44 S. E. 625.

"People v. Farrell (Mich.) 100 N. W. 264.

15 Hunt v. State, 9 Tex. App. 166. 10Omaha & R. Valley R. Co. v. Brady, 39 Neb. 27, 57 N. W. 767.

"Louisville, N. A. & C. R. Co. v. Shires, 108 Ill. 617. And see Reininghaus v. Merchants' Life Asso. 116 Iowa, 364, 89 N. W. 1113.

18Omaha & R. Valley R. Co. v. Brady. 39 Neb. 27, 57 N. W. 767; State v. Foote, 58 S. C. 218, 36 S. E. 551; Galveston, H. & S. A. R. Co. v. Baumgarten, 31 Tex. Civ. App. 253, 72 S. W. 78. And see Manufacturers' Acci. Indemnity Co. v. Dorgan, 22 L. R. A. 620, 7 C. C. A. 581, 16 U. S. App. 290, 58 Fed. 945.

And a proper foundation is laid for

at the time when he was called.19 Nor is the opinion of a medical expert rendered incompetent by the fact that it was based in part upon the statements of the patient, or injured person;20 though it cannot be based wholly on the patient's statements privately made to the expert.21 And the opinions of medical men are admitted in evidence as to the various subjects of professional skill, though the witnesses founded them, not upon their own personal observation, but on evidence given by other witnesses;22 and such opinions may be founded also upon a hypothetical case. 23 And where the medical excase.23 pert has not made a personal examination of a patient, the proper practice is to put the question to the witness, citing the supposed facts

hypothetically upon which the opinion is wanted.24 A medical expert, however, cannot give an opinion based on nonexistent facts, or facts concerning which he had no knowledge;25 and he cannot testify to an opinion formed upon information derived from private conversation with another;26 or upon facts proved by other witnesses, where the evidence as to such facts is conflicting, since that would involve a decision of an issue for the jury.27

547. Certainty. To entitle medical expert testimony as to apprehended consequences of a condition or injury to consideration, the consequences must be such as in the ordinary course of nature are reasonably certain to ensue; consequences which are contingent and speculative, or merely possible, are incompetent.28 And the possible effects attending the progress of a disease, and its probable duration, and the results which may ensue to the person afflicted, cannot be given.29 Nor are medical witnesses competent to testify as to what results are likely to follow from an injury.30 And a physician cannot speculate upon the difference in effect of an injury to a frail person, and an injury to a healthy one;31 and he is not competent to testify on an issue as to a fractured limb, as to the consequences of a

"Louisville, N. A. & C. R. Co. v. Shires, 108 Ill. 617; Page v. State, 61 Ala. 16.

Patterson v. South & North Ala. R.
Co. 89 Ala. 318, 7 So. 439.
"Louisville, N. A. & C. R. Co. v.
Shires, 108 Ill. 617.

But a question calling for the opinion of a physician was not objectionable because it did not, in terms, call for an opinion based upon examinations made by him, where the court had informed the witness that he could state what he saw and heard, and upon that he could give his professional opinion. Johnson v. Central Vermont R. Co. 56 Vt. 707. And it was competent for a physician who made an amputation and directed an assistant to dissect the leg after it was removed, to testify with reference to the results which he saw, though he had not been present during the time the dissection was actually in progress. Steinacker v. Hills Bros. Co. 91 App. Div. 521, 87 N. Y. Supp. 33.

"Page v. State, 61 Ala. 16; Gulf, C. & S. F. R. Co. v. Bell, 24 Tex. Civ. App. 579, 58 S. W. 614.

Strohm v. New York, L. E. & W. R. Co. 96 N. Y. 305; Briggs v. New York C. & H. R. R. Co. 177 N. Y. 59, 69 N. E. 223; People v. Rogers, 13 Abb. Pr. N. S. 370; People's Gaslight & Coke Co. v.

And see

Porter, 102 Ill. App. 461.
Knights of Pythias v. Allen, 104 Tenn.
623, 58 S. W. 241.

And medical expert testimony to the effect that consumption in the family of the father or mother of an injured person would have a bearing on the case that, in the course of years, probably would affect it, is conjectural and inadmissible, without first laying a foundation by showing that the injured person himself was consumptive, or reasonably certain of being consumptive. Collins v. Janesville, 99 Wis. 464, 75 N. W. 88.

"Swenson v. Brooklyn Heights R. Co. 15 Misc. 69, 36 N. Y. Supp. 445; Moritz v. Interurban Street R. Co. 84 N. Y. Supp. 163.

Atkins v. Manhattan R. Co. 57 Hun, 102, 10 N. Y. Supp. 432; Tozer v. New York, C. & H. R. R. Co. 105 N. Y. 617, 11 N. E. 369, Reversing 38 Hun, 100; Johnson v. Manhattan R. Co. 52 Hun, 111, 4 N. Y. Supp. 848; Strohm v. New York, L. E. & W. R. Co. 96 N. Y. 305: Huba v. Schenectady R. Co. 85 App. Div. 199, 83 N. Y. Supp. 157; Collins v. Janesville, 99 Wis. 464, 75 N. W. 88; Higgins v. United Traction Co. 89 N. Y. Supp. 76.

siilwaco R. & Nav. Co. v. Hedrick, 1 Wash. 446, 22 Am. St. Rep. 169, 25 Pac. 335.