Hunt v. Mayfield

• Decision Date: 22 November 1989
• Docket Number: No. CA,CA
• Citation: 583 N.E.2d 1349,65 Ohio App.3d 349
• Parties: HUNT, Appellant, v. MAYFIELD, Admr., et al., Appellees. 11364.
• Court: Ohio Court of Appeals

Page 349

65 Ohio App.3d 349

583 N.E.2d 1349

HUNT, Appellant, v. MAYFIELD, Admr., et al., Appellees.

No. CA 11364.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided Nov. 22, 1989.

E.S. Gallon & Assoc. and Deborah J. Adler, Dayton, for appellant.

Cowden, Pfarrer, Crew & Becker and Gary T. Brinsfield, Dayton, for appellees.

ROBERT P. RINGLAND, Judge

In this opinion we are asked to consider several evidentiary questions concerning the admissibility of certain hospital records and testimony based on those hospital records. For the reasons stated below, we reverse the trial court's decision.

I Posture of the Case

The fact statements supplied by the parties to this appeal are rather sparse. As nearly as we can determine, appellant worked for General Motors Corporation for approximately twenty-two years. Appellant first worked for Frigidaire, a subsidiary of General Motors. Following the sale of Frigidaire, appellant continued his employment with General Motors at the truck and bus assembly plant. Appellant initially worked as an assembler on the line. He apparently suffered a minor back injury for which he did not file a workers' compensation claim.

In 1985, appellant went to work on the second shift as a sweeper. His responsibilities included cleaning restrooms and offices, and stacking skids. On December 16, 1985, appellant was asked to clean the loading dock area. As part of cleaning in this area, appellant had to sweep under railroad cars. Apparently, appellant jumped on and off the dock frequently. On the first day of his assignment to the loading area, appellant allegedly injured his lower back. However, appellant did not take time off from work or consult a doctor. Rather, appellant continued his regular duties until after the Christmas holidays when appellant was sent to a doctor by his foreman.

On January 9 or 10, 1986, appellant consulted his personal physician at the Family Practice Center. The record indicates appellant had been treated by Drs. Stratton and Aggarwal following a work-related injury in 1983. The doctors initially treated appellant with analgesics. Approximately three weeks after his initial visit to the Family Practice Center, Dr. Aggarwal sent appellant for tests on his lower back. The test results indicated that appellant was suffering from a herniated disc in his lower back. This injury was subsequently surgically corrected. Appellant did not file a workers' compensation claim to cover this injury until nine months after he incurred the injury.

Following denial of his workers' compensation claim, appellant filed an action in common pleas court pursuant to R.C. 4123.519. At issue was the right of appellant to receive benefits under the Workers' Compensation Act for an alleged job-related injury. The matter was tried to a jury in September 1988. The trial court made certain evidentiary and jury instruction rulings against appellant, refusing to admit certain medical records on the grounds of hearsay, refusing to allow a physician to testify as to the determinations of another physician, allowing testimony concerning appellant's collateral insurance coverage, and refusing to give the jury a broad instruction on the definition of "injury" for purposes of determining a workers' compensation claim.

Following the trial the jury returned a verdict against appellant. On October 4, 1988, by final judgment entry, the court dismissed appellant's claim. Appellant subsequently filed a motion for new trial pursuant to Civ.R. 59. The trial court overruled this motion on December 5, 1988. On January 3, 1989, appellant filed his notice of appeal challenging various evidentiary rulings made by the trial court.

II

Appellant's first and second assignments of errors are intertwined and thus will be considered together. Appellant states:

"I. The trial Court committed prejudicial error in excluding certified hospital records pursuant to O.R.C. 2317.422 regarding plaintiff's care and treatment which were business records admissible as an exception to the hearsay rule under Rule 803(6).

"II. The Trial Court erred in excluding Dr. Aggarwal's expert medical opinion on the issue of causation."

Generally, authenticated hospital records, and the information contained therein, are admissible at trial. Weis v. Weis (1947), 147 Ohio St. 416, 34 O.O. 350, 72 N.E.2d 245. Although potentially replete with hearsay problems, Ohio law provides for admission of such records under certain conditions. See Stengel v. Belcher (C.A.6, 1975), 522 F.2d 438, 443 ("Under Ohio law, a physician's diagnosis made in the course of his patient's treatment and contained in a hospital record is admissible as part of a business record.").

Unlike the cognate Federal Evidence Rule, Ohio Evid.R. 803(6) omits from its coverage the category of medical "opinions and diagnoses." Fed.Evid.R. 803(6) provides, in part:

"(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, opinions or diagnoses made at or near the time * * *."

However, Ohio Evid.R. 803(6) provides:

"(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

In Ohio, the admissibility of hospital records is governed by R.C. 2317.40 and its affiliated case law. This statutory provision is the counterpart of Evid.R. 803(6). As stated in 1 Ohio Evidence (1985), Section 803.75, " * * * Because Ohio Rule 803(6) omits the 'diagnosis and opinion' language of the cognate Federal Rule from which it is derived, it may be presumed that cases interpreting the resulting parallel language in R.C. § 2317.40 retain precedential value." See, also, 1 Ohio Evidence, Section 803.73.

R.C. 2317.40 provides, in part:

"As used in this section 'business' includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried 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, at or 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 admission." (Emphasis added.)

R.C. 2317.40 works in concert with R.C. 2317.422. Under R.C. 2317.422, hospital records are admissible, for purposes of R.C. 2317.40, if they are accompanied by a certificate attesting to their accuracy and authenticity. Thus, it is unnecessary for the custodian of those records to testify in person in court as to the authenticity of the proposed evidence. See, e.g., State v. Spikes (1981), 67 Ohio St.2d 405, 408, 21 O.O.3d 254, 256, 423 N.E.2d 1122, 1126.

Applying these provisions to the case at bar, we find that the trial court erred in excluding the records on hearsay grounds. R.C. 2317.40 implies that the court may exclude otherwise authenticated records if, in the opinion of the court, the source of information, method, and time of preparation are suspect. Thus, R.C. 2317.40 does not vest the court with absolute discretion in admitting or excluding authenticated hospital records. Rather, if proffered hospital records, authenticated pursuant to R.C. 2317.422, are not suspect as to the source of information, method, and time of preparation, the trial court should admit the evidence. The records offered by appellant fall squarely within the provisions of R.C. 2317.40 and 2317.422; there is no evidence that the information, method, or time of preparation is suspect. The records are, therefore, admissible.

Appellee did not question the authenticity of the records, the information contained in the records, the method of preparing the records or their time of preparation. Appellee basically argues that the person who prepared the records was not called by appellant, and that the records themselves lack relevance. The trial court, however, relying on Hytha v. Schwendeman (1974), 40 Ohio App.2d 478, 69 O.O.2d 2d 419, 320 N.E.2d 312, excluded the hospital records on the grounds that the records constituted "hearsay because it is not something that he personally perceived and it is not admitted into evidence at the hearing, so that if he were to be called personally, then he could refer to it."

These arguments lack merit for three reasons. First, the business exception to the hearsay rule does not require that the person producing the record be the only person who testifies to the contents of the record. If that were the case, the business records exception to the hearsay rule would not exist since virtually every business record would constitute hearsay.

Second, relevant evidence is defined by Evid.R. 401 as "evidence having any tendency to make the existence of any fact that is of consequence * * * more probable or less probable than it would be without the evidence." This broad definition of "relevance" means that many forms of tenuously relevant evidence are nevertheless admissible if they make the existence of any fact in question or at issue more or...