Ede v. Atrium S. OB-GYN, Inc.

• Decision Date: 14 December 1994
• Docket Number: OB-GY,INC,No. 93-1367,93-1367
• Citation: 642 N.E.2d 365,71 Ohio St.3d 124
• Parties: EDE, Admr., Appellant, v. ATRIUM SOUTHet al., Appellees.
• Court: Ohio Supreme Court

Page 124

71 Ohio St.3d 124

642 N.E.2d 365

EDE, Admr., Appellant, v. ATRIUM SOUTH OB-GYN, INC. et al., Appellees.

No. 93-1367.

Supreme Court of Ohio.

Submitted Sept. 14, 1994.

Decided Dec. 14, 1994.

SYLLABUS BY THE COURT

In a medical malpractice action, evidence of a commonality of insurance interests between a defendant and an expert witness is sufficiently probative of the expert's bias as to clearly outweigh any potential prejudice evidence of insurance might cause. (Evid.R. 411, applied.)

This is a medical malpractice/wrongful death action brought by the plaintiff-appellant, Charles Ede, as administrator of the estate of his wife, Sheri Ede, who died on August 28, 1989. The defendants-appellees are George R. Dakoske, M.D., and the corporation of which he is the president, Atrium South OB-GYN, Inc. Dr. Dakoske performed surgery on Sheri Ede on August 24, 1989. Sheri had been scheduled to undergo an abdominal hysterectomy, but during that procedure Dakoske discovered a cancerous tumor on Sheri's right ovary which required further surgery. Sheri died four days later. Appellant alleges that Dakoske's negligent post-operative care caused Sheri's death.

The focus of this appeal is whether the trial court properly precluded appellant from eliciting testimony at trial regarding the commonality of insurance interests between Dakoske and other physicians testifying as experts on Dakoske's behalf. Before trial, Dakoske's counsel had filed a motion in limine, seeking to exclude from the trial any mention of liability insurance, including reference to the fact that Dakoske and other testifying physicians are insured by Physicians' Mutual Insurance Company ("PIE"). Appellant argued that since PIE is a mutual insurance company, each insured's policy is evidence of some fractional part ownership in PIE. Appellant argued that PIE-insured medical experts have a built-in bias--fewer successful malpractice claims means lower premiums charged for malpractice insurance.

At the start of trial, the trial judge made an interim ruling, granting Dakoske's motion in limine "with regard to the specific issue of insurance. * * * I think that the dangers * * * under Rule, ah, 404 and Rule 403 are such that shouldn't--if you feel that there is some, that it's developed that somehow becomes relevant, I'd ask you to approach the bench and get a ruling on it before you voice questions." During oral argument on the motion, the trial judge asked Dakoske's counsel whether PIE's insurance rates were related to whether an insured agreed to testify on behalf of another insured. Dakoske's counsel, reminding the court that he was "a lawyer, not an insurance man," stated that they were not. The trial judge did not, however, seek to determine whether insurance rates for a particular classification of doctor might be affected by the outcome of a particular case.

At trial, Dr. Martin Schneider, an obstetrician/gynecologist, testified on behalf of Dakoske. Appellant's cross-examination included questioning regarding Schneider's possible bias. Appellant established that Dakoske's counsel, Jacobson, Maynard, Tuschman & Kalur, previously had defended Schneider in his own malpractice case, and that Schneider had also testified as an expert in cases defended by the same firm.

Appellant's counsel then sought to establish that Schneider and Dakoske were insured by the same malpractice insurer, PIE, and asked Schneider the following question:

"Have you ever entered into any contractual relationship with any Ohio corporation for which the law firm of Jacobson, Maynard, Tuschman & Kalur provided legal services?"

Dakoske's counsel objected, which objection the trial judge sustained, "for the same reason I grant[ed] the [motion in ] limine at the start of the trial." Appellant's counsel again argued that Schneider had a potential bias and financial interest in the outcome of the case due to the terms of his insurance contract with PIE, and that the matter of insurance may be brought up pursuant to Evid.R. 411 if used to show bias. The trial judge responded:

"I think that insurance always has some tendency to show certain relevant factors.

"The issue is more appropriately dealt with under Rule 403, as to whether or not the prejudice substantially outweighs the probative value.

"And I, and just so the record is clear on the thing, we had inquiry before and I was told and it was represented that the premium rates for each of those physicians are determined according to their classification and practice and that they would not be affected by whether or not a physician, ah, determined to testify on behalf of the insurance company or didn't."

The trial judge thus precluded appellant from embarking on any questioning relevant to insurance. A jury returned a verdict in favor of Dakoske and Atrium South, and Ede appealed. The appellate court affirmed, finding that the trial court's exclusion of the insurance evidence did not amount to an abuse of discretion. The appellate court did make clear, however, that admission of the evidence, coupled with a limiting instruction, would likewise not have amounted to an abuse of discretion. The appellate court noted that "[d]epending upon the directness and scope of the potential pecuniary impact of an adverse award upon the expert witness, admission of this type of evidence upon cross-examination, coupled with the limiting instruction as to its permitted use, would seem to be the preferred choice."

The cause is now before this court pursuant to a motion to certify the record.

The Okey Law Firm, L.P.A., Steven P. Okey and Allen G. Carter, Sr., Canton, for appellant.

Fritz Byers, Toledo, Jacobson, Maynard, Tuschman & Kalur, David M. Best and Janis L. Small, Cleveland, for appellees.

Maloon, Maloon & Barclay Co., L.P.A., and Jeffrey L. Maloon, Columbus, Zagula, Hill & Dittmar and Nick Dittmar, Weirton, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

PFEIFER, Justice.

Evid.R. 411 states that while evidence of insurance is not admissible upon the issue of liability, the rule "does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership or control, if controverted, or bias or prejudice of a witness."

In Beck v. Cianchetti (1982), 1 Ohio St.3d 231, 1 OBR 253, 439 N.E.2d 417, paragraph one of the syllabus, this court held that Evid.R. 411 allows cross-examination on facts which may show bias, interest, or prejudice of a witness, even though it may disclose the existence of liability insurance in a personal injury action.

This court has also held that "[t]he scope of cross-examination of a medical expert on the questions of the expert's bias and pecuniary interest and the admissibility of evidence relating thereto are matters that rest in the sound discretion of the trial court." Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008, syllabus. In order to constitute reversible error, the limitation on cross-examination by the trial court must be unreasonable, arbitrary, or unconscionable. Calderon, supra, at 222, 24 O.O.3d at 325, 436 N.E.2d at 1012.

The other relevant Rule of Evidence in this case is Evid.R. 403, which states:

"(A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."

The trial court in this case pointed to Evid.R. 403 in determining that the issue of the commonality of interests between Drs. Dakoske and Schneider could not be demonstrated through evidence of a common insurance carrier. The trial court ruled that the danger of prejudice outweighed the probative value of such testimony. We find that determination to be unreasonable, and therefore reversible error, for two reasons.

First, the trial court did not appreciate the probative value of establishing that Dakoske and Schneider were both insured by PIE. The trial court focused its inquiry on only one thing--whether a doctor's premiums could be raised by PIE if the doctor refused to testify on behalf of another PIE-insured doctor. Thus, the trial court sought to determine whether PIE coerced Schneider's testimony, but did not seem to consider Schneider's personal bias resulting from his insurance relationship. Satisfied by Dakoske's attorney's assurance that Schneider was not being coerced by PIE, the trial court failed to consider other possible biases created by Schneider's relationship with PIE. The trial court was not responsive to appellant's argument that as a fractional part-owner of PIE, Schneider's own premiums might fluctuate due to the result of the case. Such testimony would have been probative of bias.

Second, the trial court erred by grossly overestimating to what extent testimony that Dakoske was insured would prejudice the jury. The second sentence of Evid.R. 411 exists for a reason--it recognizes that testimony regarding insurance is not always prejudicial. However, too often courts have a Pavlovian response to insurance testimony--immediately assuming prejudice. It is naive to believe that today's jurors, bombarded for years with information about health care insurance, do not already assume in a malpractice case that the defendant doctor is covered by insurance. The legal charade protecting juries from information they already know keeps hidden from them relevant information that could assist them in making their determinations. Our Rules of Evidence are designed with truth and fairness in mind; they do not require that courts should be blind to reality.

Evid.R. 102 sets forth the purpose of the Ohio Rules of Evidence:

"The purpose of these rules is to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined. * * * "

Given the sophistication of our juries, the first...