Hytha v. Schwendeman

• Decision Date: 05 March 1974
• Citation: 320 N.E.2d 312,69 O.O.2d 419,40 Ohio App.2d 478
• Parties: , 69 O.O.2d 419 HYTHA et al., Appellants, v. SCHWENDEMAN, Appellee. *
• Court: Ohio Court of Appeals

Page 478

40 Ohio App.2d 478

320 N.E.2d 312, 69 O.O.2d 419

HYTHA et al., Appellants, v. SCHWENDEMAN, Appellee. ^*

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

March 5, 1974.

Syllabus by the Court

Before the record of a medical diagnosis made by a physician may be admitted into evidence, pursuant to R.C. 2317.40 (Records, as evidence), the following factors must be present:

(1) The record must have been a systematic entry kept in the records of the hospital or physician and made in the regular course of business;

(2) The diagnosis must have been the result of well-known and accepted objective testing and examining practices and procedures which are not of such a technical nature as to require cross-examination;

(3) The diagnosis must not have rested solely upon the subjective complaints of the patient;

(4) The diagnosis must have been made by a qualified person;

(5) The evidence sought to be introduced must be competent and relevant;

(6) If the use of the record is for the purpose of proving the truth of matter asserted at trial, it must be the product of the party seeking its admission;

(7) It must be properly authenticated.

Wolske & Blue, Columbus, for appellant.

Sebastian, Durst, marsh & Redmond, Columbus, for appellee.

Holmes, judge.

This appeal presents a rather unusual stance of the parties involved, in that plaintiff Adesta Loretta Hytha, hereafter referred to as appellant, who had won a jury verdict in the Common Pleas Court of jury verdict in the Common Pleas Court on Franklin County, appeals to this court on the basis that the jury's verdict was grossly inadequate, which, as stated by the appellant, indicated 'a misunderstanding by the jury of the law and the evidence.

Appellant also alleges that the trial court erred in allowing in certain hearsay evidence by way of cross-examination, such evidence being in the form of a physician's medical report concerning the appellant which had been supplied to the appellant's attending physician by another physician. The latter physician was not called as a witness at the trial of this matter.

The facts giving rise to this appeal are, in brief, that the appellant was, on the 16th day of August, 1969, driving an automobile on a street in Franklin County when she was struck in the rear of such automobile by the defendant-appellee. The special damages to the automobile were shown to be approximately $1,800.

The appellant, immediately after the collision, went to the St. Anthony Hospital emergency room and was, after observation, released to her own physician. Appellant came under the care of a Dr. Galen Davis, which doctor attended the appellant for about one year, prior to the appellants' moving from this state to Miami, Florida, where she came under the care of another doctor.

On behalf of appellant, Dr. Davis testified that the appellant has suffered a hyperextension flexion injury to the cervical spine, and also a duodenitis condition occasioned by the volume of aspirin which had been prescribed for her.

During the cross-examination of Dr. Davis by defense counsel, the latter questioned the doctor concerning a report prepared by a Dr. Samuel Robinson concerning a physical examination of the appellant. Such examination and report had been requested by Dr. Davis, the latter having referred the appellant to Dr. Robinson, a specialist in gastroenterology, for a separate opinion concerning her gastrointestinal tract.

Appellant's counsel objected to the introduction of such medical report, arguing that it was hearsay in that the doctor preparing such report was not available for cross-examination, and that such medical report was not an exception to the hearsay rule, as it was not such a record that would be permitted to be introduced pursuant to R.C. 2317.40 (pertaining to certain business records).

Also, the appellant's counsel argued to the trial court, as well as herein, that, in any event, such medical record was not relevant to the issues of the case in that it had been prepared in response to appellant's having been directed to Dr. Robinson by Dr. Davis for a medical analysis of the colitis condition of the plaintiff, which, the appellant's counsel argues, is a physical problem completely separate from, and not claimed as a part of, this case.

The trial court overruled the appellant's objection to the introduction of the report, on the basis that such was a part of the business records of Dr. Davis, and thereupon admitted the complete report as evidence.

We disagree with the decision of the trial court to admit the report for a number of reasons.

The pertinent statute applicable to this discussion is R.C. 2317.40, which reads as follows:

'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 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.'

This section of law codified what in essence had been one of the time-honored common law exceptions to the hearsay rule, when dealing with business records. Such was known as the 'shopbook rule.' The rule had been adopted for the purpose of simplifying the identification and introduction of records with which a number of people had been involved, and to which they had, in part, contributed.

Speaking of the basis theory of the Uniform Business Records as Evidence Act, we find the foolowing, in 30 American Jurisprudence 2d 53, Evidence, Section 933:

'* * * The basic theory of the uniform law is that records which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence.'

Insofar as a reviewing court is concerned, the first proposition of law that needs to be stated in relation to R.C. 2317.40 is that generally, in the application of such section, as it relates to any business records, wide latitude must be given to the trial court in the exercise of its discretion in determining the admissibility of such records. Halle Bros. Co. v. Cope (1960), Ohio App., 13 Ohio Op.2d 331, 165 N.E.2d 25.

There must, however, be certain legal principles regarded and respected in the application of the statute. We note a number of such principles which are particularly pertinent to this matter under review.

In Weis v. Weis (1947), 147 Ohio St. 416, 71 N.E.2d 245, the Supreme Court, in holding that, generally, hospital records, and physicians' office records may be admissible pursuant to R.C. 2317.40, commented at page 424, 72 N.E.2d at page 250 as follows:

'Under this and similar statutes, by the great weight of authority, those portions of hospital records made in the regular course of business and pertaining to the business of hospitalization and recording, observable acts, transactions, occurrences or events incident to the treatment of a patient are admissible, in the absence of privilege, as evidence of the facts therein recorded, insofar as such records are helpful to an understanding of the medical or surgical aspects of the case, and insofar as relevant to the issues involved, provided such records have been prepared, identified and authenticated in the manner specified in the statute itself. * * *'

What was considered to be competent for admissibility as evidence, within such business records section, was set forth in Weis at page 425, 7i N.E.2d at page 250, as follows:

'Such a hospital or physician's office record 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. * * *' As to a comment on what may be included within hospital or physicians' reports for introduction under business records acts, see 40 American can Jurisprudence 2d 884, Hospitals and Asylums, Section 43.

It should be noted that amond the types of contents of hospital records and physicians' office records, which were referred to in Weis, as well as within the stated American Jurisprudence article, as being admissible, if otherwise found to be competent, were physicians' physical examinations and finding and a 'diagnosis by one qualified to make it.'

This appellate court has previously given its attention to the admissibility of that portion of a hospital record which contained a medical diagnosis. In the case of Dillow v. Young (1965), 3 Ohio App.2d 110, 209 N.E.2d 623, reversed upon other grounds in 6 Ohio St.2d 221, 217 N.E.2d 868, this court held within the second paragraph of the syllabus, as follows:

'2. Any statement contained in an otherwise duly authenticated record is admissible if that statement falls within the general principles of the law of evidence, and accordingly where a statement would be admissible if testified to in open court by the person who made the record, a proper record of such statement is admissible.'

As to the inclusion of expert opinion generally, within a business record, the court opined, 3 Ohio App.2d at page 113, 209...