Kraner v. Coastal Tank Lines, Inc.
| Decision Date | 30 March 1970 |
| Citation | 22 Ohio App.2d 1,257 N.E.2d 750,51 O.O.2d 7 |
| Parties | , 51 O.O.2d 7 KRANER, a Minor, Appellee, v. COASTAL TANK LINES, INC., Appellant. |
| Court | Ohio Court of Appeals |
Syllabut by the Court
1. A doctor's report upon an electroencephalogram test is a 'record' of a 'condition' under the Business Records as Evidence Act (Section 2317.40, Revised Code) applicable in civil cases.
2. When properly in evidence, such reports may be included in a hypothetical question used as a basis for opinion evidence
Graham & Graham and Thomas N. Bopeley, Zanesville, for appellee.
Reese, Fitzgibbon & McNenny, Newark, for appellant.
This personal injury case went to the jury in January 1969 on the sole issue of damages. A $20,000 verdict was returned and judgment entered.
Plaintiff, appellee herein, claimed injury resulting from a collision March 10, 1960, between a tank truck operated by an employee of defendant, appellant herein, and a school bus in which the then 8-year-old plaintiff was a passenger.
In June 1960, plaintiff was referred to Dr. Martin F. Sayers, a neurosurgeon in Columbus, Ohio, whose June 1968 deposition went into evidence without objection. In it he testified, without objection, about three reports of one Dr. Parker on separate electroencephalogram (hereinafter called EEG) tests given by Dr. Parker on June 15, 1960, July 27, 1960, and November 16, 1966.
Two weeks before trial, at the request of plaintiff's counsel, one Dr. Oser examined plaintiff and referred her to the same Dr. Parker, who made another EEG test on December 26, 1968, and sent a written report of his opinion thereof to Dr. Oser, who testified as to its findings. Dr. Parker never testified.
Dr. Oser prescribed anti-convulsants for the epilepsy he diagnosed. His diagnosis of epilepsy went into evidence without objection.
The defendant assigns the following errors:
Assignment of Error No. 1.
The trial court erred in admitting hearsay testimony over the objection of defendant.
1. The trial court erred in allowing Dr. Beryl Oser to relate to the jury the history given him by the plaintiff and her mother at the time of his examination of her two weeks before the trial.
2. The trial court erred in admitting, over the objection of defendant, the testimony of Dr. Oser as to the remarks and conclusions of Dr. Parker on the electroencephalogram performed June 15, July 27, 1960, and November 16, 1966.
Assignment of Error No. 2.
The trial court erred in permitting Dr. Oser to answer the hypothetical question propounded by plaintiff's counsel.
Assignment of Error No. 3.
The jury awarded excessive damages which appeared to have been given under the influence of passion or prejudice.
The first part of the first assignment of error is not well taken and is overruled.
The trial court struck substantial portions of the history given by Dr. Oser and told the jury to disregard it. This was not necessary, because the substance of the history had already been independently proved as follows:
Dr. Sayers testified that plaintiff had a blackout and an unconscious spell and that he treated her from 1960 through 1962 with anti-convulsants to prevent recurrences.
Plaintiff's father testified to a knot on plaintiff's head, as die her mother who said plaintiff came home crying, complaining her head and neck hurt her.
She had a knot on the back of her head. 'She said she had hit it on something'; that she laid about the house for two weeks during which she was nauseous and vomited, and, after she went back to school, she had several seizures.
No prejudice could result from the testimony of Dr. Oser as to the history related to him because the substance of it had already been fully proved.
The second part of the first assignment of error is overruled. It limits its complaint to the testimony of Dr. Oser as to the remarks and conclusions of Dr. Parker on the first three EEGs. There can be no prejudice in this because, without objection, defendant permitted Dr. Sayers' deposition in evidence, in which he also commented upon the same three EEG reports and conclusions of Dr. Parker and said they were abnormal tracings. In other words, Dr. Sayers having been permitted, without objection, to refer to the reports and call the test results abnormal, Dr. Oser's testimony, which was to the same effect, could not be prejudicial.
We now turn to assignment of error No. 2 relating to a hypothetical question put to Dr. Oser. The assignment of error is not well taken and is overruled. It is significant that prior to the asking of the hypothetical question Dr. Oser was permitted, without objection, to testify to his diagnosis of epilepsy based upon his physical examination and the history which was permitted to remain in the record. The hypothetical question was then used to elicit two opinions. The first went to permanency of the epilepsy already diagnosed, and the second to causation.
No case is cited, nor do we find any holding, or saying by dictum, that, once properly in evidence, reports of qualified doctors on EEG tests may not be included in hypothetical questions forming the basis for opinion evidence.
Zelenka v. Industrial Commission, 165 Ohio St. 587, 138 N.E.2d 667, does not require reversal of this case. It is the sole authority cited by defendant in support of this assignment of error.
The last sentence of Zelenka, at pages 594 and 595, 138 N.E.2d at page 672 reads:
'In the opinion of this court, under the law as supported by the authorities herein cited, the hospital records which were introduced in evidence in the instant case were not of such character as to furnish a basis of fact for expert medical opinion, in the absence of a hypothetical question particularly specifying only such proved facts as could be a basis for an expert opinion.'
Our case does not deal with a mass of hospital records but rather 'a hypothetical question particularly specifying' findings of fact including reports of conditions observed by Dr. Parker in the EEG reports.
The weight of defendant's reliance upon Zelenka falls upon the dictum therein. The holding in Zelenka is not applicable to our facts. After having decided Zelenka on the basis that the text of the hypothetical question was so bad because of such a sweeping inclusion of a mass of hospital records that the jury could not know what facts the opinion was being based upon, the opinion goes on, by way of obiter dictum, to say, at page 594, 138 N.E.2d at page 671:
EEG reports are statements of 'conditions' and are regularly considered by competent doctors in diagnostic work respecting suspected epilepsy. Modern medical practice makes regular use of other scientific tests for the purpose of finding facts necessary in arriving at diagnoses. For example, the pathologist regularly communicates his findings on tissues in biopsy examinations during operations whereupon serious surgical decisions of life or death dimension are made while the patient lies open on the operating table.
These are not 'mere opinions of others.'
The key to the issue is the distinction between statements of observable conditions, findings of facts and those things which are 'mere opinion and speculation.'
In Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245, 169 A.L.R. 668, admission into evidence of hospital records containing records of analysis of blood and urine was expressly approved in a case which decleared the rule that only records of 'observable facts' were proper.
There is no more 'mere opinion' in an EEG report than in a report of urinalysis or blood analysis.
The heart of the problem is that the legal profession is being asked to adopt a rule of evidence which says in effect: 'that may be the way you doctors handle human lives but it is below the high standard of care we lawyers use in the trial of lawsuits.'
A proper analysis of all the cases shows that in every instance the rule of evidence in question is a limitation upon how lawyers may ask hypothetical questions, not upon how doctors may practice medicine.
Reading carefully the balance of the authorities cited as standing for the 'well settled' rule barring opinions predicated on opinions of others referred to in the Zelenka dictum, we find the following:
The doctrine of Manufacturers' Accident Indemnity Co. v. Dorgan, 6 Cir., 58 F. 945, 22 L.R.A. 620, is simply:
'A physician, merely from hearing testimony as to an autopsy by those who performed it, cannot be asked whether the autopsy was such as to enable a physician to state the cause of death with any degree of certainty.'
The reason: the jury would not know exactly upon what facts it was based.
The doctrine of Barker v. S. A. Lewis Storage & Transfer Co., 79 Conn. 342, 65 A. 143, 118 Am.St.Rep. 141, is (Am.St.Rep. headnotes):
'If it is proposed to interrogate a witness without including in the question all the facts upon which he is to give an opinion, the court may decline to permit him to so testify.'
The doctrine of Mt. Royal Cab Co., Inc. v. Dolan, 168 Md. 633, 179 A. 54, 98 A.L.R. 1106; annotations 82 A.L.R. 1489 and 98 A.L.R. 1110, is that a doctor who has never seen the patient may not testify that the patient is ill, in his opinion, based on all the testimony, where the testimony consists in part of the examination and opinions of other doctors as to the patient's illness.
This simply means that Dr. A cannot testify that 'I did not see the...
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