Dillow v. Young

• Decision Date: 27 July 1965
• Citation: 209 N.E.2d 623,3 Ohio App.2d 110
• Parties: , 32 O.O.2d 199 DILLOW, Appellant, v. YOUNG, Admr. of the Bureau of Workmen's Compensation, et al., Appellees.
• Court: Ohio Court of Appeals

Page 110

3 Ohio App.2d 110

209 N.E.2d 623, 32 O.O.2d 199

DILLOW, Appellant, v. YOUNG, Admr. of the Bureau of Workmen's Compensation, et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 27, 1965.

A. Millard Armstrong, Columbus, for appellant.

William B. Saxbe, Atty. Gen., Robert M. Duncan and Donald M. Colasurd, Columbus, for appellee James, L. Young, Admr.

Thompson, Meier & Wachtel, Columbus, for appellee Mercy Hospital.

DUFFEY, Judge.

This is an appeal from a judgment of the Common Pleas Court of Franklin County entered upon a directed verdict at the close of plaintiff-appellant's case. The action is one to determine plaintiff's right to participate under the Workmen's Compensation Act.

The petition alleged that plaintiff was an employee of the appellee Mercy Hospital. The claim is that plaintiff inhaled noxious fumes from a disinfectant, and that this caused injury to her heart and lungs. The petition specifically alleges that the injury was an aggravation of a pre-existing condition of chronic pulmonary emphysema and congestive heart failure.

The principal issue in this appeal is the admissibility under Section 2317.40, Revised Code, of certain statements found in records of the appellee hospital. The general foundation for admissibility under the statute was properly laid, and no challenge was offered on that aspect, i. e., identity, prepatation and regular course of business. Appellees made specific objections to particular statements in the records. The trial court sustained objections to statements containing medical diagnoses on the ground that they were merely opinions and not statements of fact. Other statements were excluded as being merely 'history' or as constituting 'hearsay on hearsay.'

Section 2317.40, Revised Code, provides:

'As used in this section 'business' includes every kind of business, profession, occupation, calling, or operation of institutions, whether rarried on for profit or not.

'A record of an act, condition, or event, in so far as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, or at near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.

'This section shall be so interpreted and construed as to effectuate its general purpose to make the law of this state uniform with those states which enact similar legislation.'

In addition to the requirements of a general foundation specified in the statute, certain other basic limitations on the operation of this statute have become well established. One of the most commonly referred to it the general proposition that the statute does not permit 'hearsay on hearsay.' This refers to the situation in which a statement contained in a record is itself hearsay. An affirmative way of stating the same point is the frequently seen proposition that statements in an authenticated record are admissible insofar as they contain 'observable facts.' See Weis v. Weis (1947), 147 Ohio St. 416, 72 N.E.2d 245, 169 A.L.R. 668. Cf. Ronald v. Young, Admr. (1963), 117 Ohio App. 362, 182 N.E.2d 74.

In the present case, appellees have relied on these general propositions and contend, in effect, that only statements of observable facts are admissible under Section 2317.40, Revised Code. It is contended that statements of opinion contained in a duly authenticated record are inadmissible because they are opinions and not observable facts. The argument as made draws no distinction between, on the one hand, opinions which are by persons who are not qualified or which are subject to other established grounds of objection, and, on the other hand, opinions which are by qualified experts as to matters which are a proper subject for opinion evidence.

In our opinion, appellees have confused several useful 'rules of thumb' or general propositions used to test the application of the statute with the actual criteria of admissibility under the statute. The criteria under the statute are quite explicit. An otherwise duly anthenticated record is admissible whenever 'the sources of information, method, and time of preparation were such as to justify its admission.' Under this standard, records containing both 'hearsay on hearsay' and opinion may be admissible under certain circumstances.

Even though the statute has removed the hearsay objection to the record itself, it is true that nothing in the statute purports to wipe out objection to the internal hearsay nature of a statement contained in the record. However it does not follow that such internal hearsay, or 'hearsay on hearsay,' is thereby inadmissible. Whether such a statement is admissible depends on whether it falls within one of the exceptions to the hearsay rule. For example, a record of a hearsay statement which came within the res gestae principle, or constituted an admission of a party, etc., would be admissible. See Schmitt v. Doehler Die Casting Co. (1944), 143 Ohio St. 421, 55 N.E.2d 644. Cf. Green v. City of Cleveland (1948), 150 Ohio St. 441, 83 N.E.2d 63, paragraph two of the syllabus and the discussion in the dissenting opinion.

Likewise we think it clear that a record of an opinion by a qualified expert as to a matter upon which opinion evidence is proper is also admissible. The fundamental purpose of Section 2317.40, Revised Code, was to do away with the old 'shopbook' rule, and with the archaic restrictions which that rule and other common law hearsay doctrines had created. Under the statute, there are two major requirements for admissibility. The first is that the record meet the criteria for the reliability of the record itself--criteria created by the statute in lieu of the 'shopbook' law. These criteria are that the custodian or other qualified person testify, as to identity, preparation, regular course of business, etc. If the record is shown to be reliable (i. e., meets those statutory requirements), then any statement contained in the record is admissible if that statement falls within the general principles of the law of evidence. Any statement within a duly authenticated record is admissible where such statement would be admissible if testified to in open court by the person who made the record.

Accordingly we hold that a properly authenticated record of a medical diagnosis made by a qualified doctor may be admitted into evidence under Section 2317.40, Revised Code.

The admissibility of a proper record of a medical diagnosis is recognized by leading Ohio cases interpreting Section 2317.40, Revised Code. In Weis v. Weis (1947), 147 Ohio St. 416, at page 425, 72 N.E.2d 245, at page 250, the court in discussing admissibility of medical records stated:

'Such a hospital or physician's office rocord may properly include case history, diagnosis by one qualified to make it, condition and treatment of the patient covering such items as temperature, pulse, respiration, symptoms, food and medicines given, analysis of the tissues or fluids of the body and the behavior of and complaints made by the patient. * * *' (Emphasis added.)

In the same opinion, the court listed with approval various types of records held admissible by other courts. Included in the list, at page 426, 72 N.E.2d at page 251, were 'diagnosis of cerebral hemorrhage' and a 'report to effect patient had ulcer, cronic prostatitis and seminal vesiculities.'

In Green v. City of Cleveland (1948), 150 Ohio St. 441, 83 N.E.2d 63, the court excluded a statement as to the cause of an accident, holding that this was not a record made within the business of a hospital. The court went on to point out, at page 444, 83 N.E.2d at page 65, that 'it was the business of the hospital to diagnose plaintiff's condition * * *.' In Lewis v. Woodland (1955), 101 Ohio App. 442, 140 N.E.2d 322, the court excluded an opinion on a medical matter because the record was not prepared by a qualified expert. However, it should be noted that in Lewis, at page 446, 140 N.E.2d at page 326, Judge Fess specifically listed as admissible the record of a 'diagnosis by one qualified to make it * * *.'

The case of Carson v. Metropolitan Life Ins. Co. (1951), 156 Ohio St. 104, 100 N.E.2d 197, is distinguishable. The court there held a coroner's death certificate which stated the cause of death as 'suicied' was not admissible. However, that case dealt with three specific statutes, each of which by its terms limited the admissibility of the designated record to the 'facts' contained in that record. Section 2317.40, Revised Code, was not discussed in the opinion, and that statute is not by its terms limited to a record of facts. Further, suicide was the ultimate issue in the case and, therefore, not ordinarily a proper subject for an expert opinion. The opinion also was expressed by a coroner who had not examined or treated the person and did not observe the death and, therefore, was not a qualified expert. On the latter aspect, compare the subsequent decision of the court in Perry v. Industrial Commission (1954), 160 Ohio St. 520, 117 N.E.2d 34 which upheld the admissibility...