Kraner v. Coastal Tank Lines, Inc. ( 1970 )

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.

I. 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 did 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.

II. 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. III. 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 bydictum, that, once properly in evidence, reports of qualified doctors on EEG tests may not be included in hyothetical questions forming the basis for opinion evidence.

Zelenka v. Industrial Commission, 165 Ohio St. 587, 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, 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 specifiying 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:

"Furthermore, it is well settled that the opinion of an expert witness cannot be predicated either in whole or in part upon the opinions, inferences and conclusions of others, whether expert or lay witnesses. Manufacturers AccidentIndemnity Co. v. Dorgan, 58 F. 945, 22 L. A. R., 620; Barker v.S. A. Lewis Storage Transfer Co., 79 Conn. 342, 65 A. 143, 118 Am. St. Rep., 141; 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."

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, 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 declared 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, 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 TransferCo., 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 patient but if Dr. B and Dr. C examined him and are of the opinion he is ill then in my opinion he is ill." See 98 A.L.R. at page 1112, citing Pecos N. T. R. Co. v. Coffman (Tex.Civ.App.), 160 S.W. 145.

That is really what is meant by the rule prohibiting "opinionpredicated upon the opinion of others."

Frequently cases are cited as holdings under that rule, which are simply holdings that the hypothetical question was improper because the jury could not tell what facts were relied upon to give the opinion validity.

A frequently appearing example is the case of Estes v.Goodyear Tire Rubber Co. (Common Pleas), 60 Ohio Law Abs. 266, which dealt with an expert medical witness who had never seen the patient and who was asked (as in Zelenka) to assume the facts and opinions found in the medical records. The court said: "There is nothing to show what the doctor did consider. Such a method of presenting a hypopthetical question is improper."

We find no error in the inclusion of EEG reports in a hypothesis used as a basis for an expert opinion.

The fact that scientific expertise is necessary to enable an observer to discover or detect certain facts or conditions by the use of scientific testing devices does not render the report of the results of such tests reciting the finding of those facts or observation of those conditions "mere opinion of others" within the meaning of the rule of evidence prohibiting opinions which are based upon the "opinions of others."

The EEG reports of June and July 1960 and November 1966, themselves, were in evidence without objection.

The fourth report of November 16, 1968, was properly shown to meet the requirements of Section 2317.40, Revised Code, which applies for reasons which follow.

In the case of Weis v. Weis, 147 Ohio St. 417, 169 A. L. R. 668, Judge Hart (who also wrote Zelenka v. IndustrialCommission, 165 Ohio St. 587), speaking for the Ohio Supreme Court affirming a successful will contest case where hospital charts and records, including records of analysis of blood and urine, covering a twenty-five day period during which decedent wrote the contested will were admitted into evidence, refers to the case of People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490.

The Kohlmeyer case is at the nub of an excellent annotation in 66 A. L. R. 2d 536, on the subject "admissibility in civil action of electroencephalogram, electrocardiogram or other record made by instrument used in medical test, or of reportbased upon such test." (Emphasis added.)

The annotation states (page 545) that: "the court in Mayole v. B. Crystal Son, Inc. (1943), 266 App. Div. 1008, 44 N. Y. So.2d 441, said that it was prejudicial error to exclude the electroencephalogram and the records respecting it made in the regular course of business," citing the New York "business records" statute and People v. Kohlmeyer, 284 N.Y.. 366,31 N.E.2d 490.

We observe that the New York statute is similar to Section2317.40, Revised Code:

The annotation continues:

"The notation in a hospital record that the patient, a child, had had an electroencephalogram which led the neurologist examing him to believe that he was suffering from epilepsy was seemingly held in Young v. Liddington (1957), 50 Wn. 2d, 78,309 P.2d 761, a malpractice action, to be admissible in evidence under the Uniform Business Records Act creating an exception to the hearsay rule. Noting that the rule under the statute was adopted for the purpose of avoiding the necessity of calling the numerous witnesses who may have had a part in the creation of such records, that business records are admitted to prove the truth and accuracy of accounts then present and contemporaneously recorded, and that hospital records do not differ from any other kind of record kept in the regular course of business, the court also said that a business record is admissible only in so far as it represents a record of a contemporaneous act, condition, or event, and that the doctor's present determination (based in part upon the results of the electroencephalogram) that the child was suffering from epilepsy was a ``condition' within the test of admissibility just stated."

We agree with the reasoning and analysis of the New York and Washington courts and also are bound by Section 2317.40, Revised Code, to construe our business records statute so as to make our law uniform with theirs.

We observe that Judge Hart wrote the opinion in both Zelenka and Weis and cited the New York Kohlmeyer case in the Weis opinion. Therefore, we feel warranted in regarding that as authority to consider such EEG reports to be statements of "conditions" or findings of fact as distinguished from the mere "opinions of others" prohibited from inclusion in hypothetical questions by the rule referred to in Judge Hart's dictum inZelenka.

The Ohio Legislature has required us, by the last paragraph of Section 2317.40, Revised Code, to give effect to those opinions of courts of other states:

"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."

Therefore, to make the interpretation of our law uniform, two separate doctrines must be recognized. First, reports by qualified doctors on EEG reports are admissible under Section2317.40, Revised Code, in civil cases in the exercise of sound discretion, and, secondly, they are "statements of conditions" properly includible, where relevant, in otherwise proper hypothetical questions seeking expert opinions.

To avoid future confusion, we state that we note the inapplicability of Section 2317.40, Revised Code, to criminal cases decided and discussed in State v. Tims, 9 Ohio St.2d 136.

Defendant further claims that the inclusion in the hypothetical question of the fact that plaintiff was treated with anti-convulsant medication compels "the answerer of the hypothetical question to infer that Dr. Sayers concluded the plaintiff had epilepsy."

Whether that is true or not, it could not be prejudicial on this record because, before he was asked the hypothetical question (seeking his opinion on permanency and then on causation), Dr. Oser gave his diagnosis, without any objection, of epilepsy.

The hypothetical question in the case at bar was as brief and concise as the nature of the case permitted, specific so the jury knew what facts were being relied on, the hypotheses were amply supported by properly admitted evidence and there was no abuse of discretion in the ruling of the trial court permitting it to be answered.

IV. Moving on to the last assignment of error, we find that the amount of the verdict is not excessive but, on the contrary, rather modest, taking into consideration the evidence of injury and damage. V. Taking into consideration the entire record, we certify that in our opinion substantial justice has been done the party complaining.

Judgment affirmed.

VAN NOSTRAN, P. J., concurs.

RUTHERFORD, J., dissents from the syllabus and the judgment.