Oberlin v. Akron Gen. Med. Ctr.

• Decision Date: 28 March 2001
• Docket Number: No. 99-1876.,99-1876.
• Citation: 743 NE 2d 890,91 Ohio St.3d 169
• Parties: OBERLIN ET AL., APPELLANTS, v. AKRON GENERAL MEDICAL CENTER; NORTH HILL ORTHOPAEDICS, INC. ET AL., APPELLEES.
• Court: Ohio Supreme Court

91 Ohio St.3d 169

743 NE 2d 890

OBERLIN ET AL., APPELLANTS, v. AKRON GENERAL MEDICAL CENTER; NORTH HILL ORTHOPAEDICS, INC. ET AL., APPELLEES.

No. 99-1876.

Supreme Court of Ohio.

Submitted September 13, 2000.

Decided March 28, 2001.

A. William Zavarello Co., L.P.A., A. William Zavarello and Rhonda Gail Davis, for appellants.

Mazanec, Raskin & Ryder and John L. Cullen, for appellees.

Mark W. Ruf, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

PFEIFER, J.

In December 1994, appellee Gregory Hill, D.O., performed a thumb joint fusion and bone graft procedure on appellant Robert C. Oberlin at Akron General Medical Center. In surgery, Hill used a pneumatic tourniquet with the assistance of a nurse. Hill dictated the tourniquet use, including its inflation pressure and the duration of the inflation. At Hill's direction, the tourniquet remained inflated for two hours and twenty-four minutes.

Oberlin claimed that he suffered permanent damage to his left arm, hand, and ulnar nerve due to Hill's negligence. According to expert testimony presented on Oberlin's behalf, the length of the inflation time was excessive, resulting in permanent injury to Oberlin, namely, reflex sympathetic dystrophy.

Gregory Vrabec, M.D., testified as an expert for Hill. In his discovery deposition of May 28, 1997, Vrabec admitted to being a defendant in a pending medical malpractice action. When asked of the nature of the injury in that case, Vrabec responded, "Interestingly, it is ulnar nerve following an ulnar nerve transposition of the elbow." However, Vrabec claimed no knowledge of the details of the claim, including the plaintiff's theory of negligence.

In a video deposition of June 13, 1997, Oberlin's counsel again cross-examined Vrabec as to the claim against him. The claim had been brought in Canada by Vrabec's former patient, Donna Kampen, and involved an injury similar to Oberlin's. Kampen's claim arose out of orthopaedic surgery on her left arm, and her injury was to her left ulnar nerve, causing causalgia, also known as reflex sympathetic dystrophy.

When the video deposition was played at trial, the court refused to allow the jury to view Oberlin's cross-examination of Vrabec concerning the Canadian malpractice case. The trial court found that although the testimony "may have some probative value in terms of bias, * * * the Court feels that the prejudicial nature of this testimony far outweighs any probative value." Upon review of the transcript of the June 13, 1997 deposition, the trial judge noted:

"And all I can tell from reading this transcript, the only thing that the doctor agrees upon, that it involved orthopaedic surgery treatment on her left hand. "* * *

"I can't tell from reading this whether or not [the Canadian] litigation * * * involved a tourniquet or if there was a problem with the anesthesia or all of those that are present in our case. I can't tell."

On appeal, Oberlin attempted to demonstrate the probative value of the disallowed testimony, arguing that the evidence would have established potential bias on Vrabec's part because he was facing a very similar malpractice claim himself. In his brief to the appellate court, Oberlin attached Vrabec's deposition in his own malpractice case taken in Canada on July 26, 1996. That deposition, however, had not been made available to the trial judge. The appellate court held that because Oberlin had failed to demonstrate that the probative value of the evidence at issue was not substantially outweighed by the danger of unfair prejudice, the evidence was inadmissible pursuant to Evid.R. 403(A).

The cause is now before this court upon the allowance of a discretionary appeal.

We hold that evidence that an expert witness is a defendant in a pending malpractice action alleging a medical error similar to the one at issue is probative and is admissible to prove bias, prejudice, or motive to misrepresent.

Evid.R. 611(B) states that "[c]ross-examination shall be permitted on all relevant matters and matters affecting credibility."

Evid.R. 616(A) addresses certain acceptable methods of impeaching witnesses:

"(A) Bias. Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence."

Thus, Evid.R. 611 and 616, by specifically mentioning credibility, bias, and prejudice as appropriate subjects of cross-examination, are a testament to the inherent probative value of such evidence. Evid.R. 403 seeks to eliminate the potential for prejudice of certain evidence by prohibiting its use in certain circumstances. The rule reads:

"(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 rule requires that the unfair prejudice substantially outweigh the probative value of the evidence. Evid.R. 611(B) and Evid.R. 616 establish that cross-examination evidence relating to lack of credibility and bias has probative weight. The first question, then, is whether the evidence at issue in this case could show bias. The trial judge claimed to know little of the specifics of the claim against Vrabec—"the only thing that the doctor agrees upon, that it involved orthopaedic surgery treatment on her left hand."

The similarity of the area operated upon and of the resulting injury is enough to indicate bias. If Vrabec were to criticize any aspect of Hill's handling of the surgery, the Canadian plaintiff might seize on that testimony and use it against Vrabec in her own suit. Therefore, Vrabec might be biased in evaluating Hill's performance for fear that the testimony might be used against him later. He might be predisposed to find that the doctor here acted within acceptable bounds of competence. Second, an expert with an active malpractice case against him might be hostile to malpractice claimants in general. He might apply what he considers the unfairness of the entire process to his interpretation of whether this particular doctor acted reasonably.

The probative value of Vrabec's testimony is unquestionable. The ultimate question becomes one, then, of whether there is unfair prejudice in allowing questioning on a witness's own malpractice claim. We look to other decisions of this court where potential prejudice was an issue. In Beck v. Cianchetti (1982), 1 Ohio St.3d 231, 236, 1 OBR 253, 257, 439 N.E.2d 417, 421, this court held that Evid.R. 411 "allows admission of evidence of liability insurance when offered to prove bias or prejudice of a witness." In Beck, the cross-examination of the witness would have revealed that the defendant in a negligence action had liability insurance, a fact that is not admissible to prove negligence. However, this court held that the evidence was admissible because it was offered to prove the witness's motive to misrepresent.

More recently, in Ede v. Atrium S. OB-GYN, Inc. (1994), 71 Ohio St.3d 124, 642 N.E.2d 365, syllabus, this court held that "evidence of a commonality of insurance interests between a defendant and an expert witness is...