Beard v. Meridia Huron Hospital

834 N.E.2d 323, 106 Ohio St. 3d 237
CourtOhio Supreme Court
DecidedSeptember 28, 2005
DocketNo. 2004-0048
StatusPublished
Cited by123 cases

This text of 834 N.E.2d 323 (Beard v. Meridia Huron Hospital) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beard v. Meridia Huron Hospital, 834 N.E.2d 323, 106 Ohio St. 3d 237 (Ohio 2005).

Opinions

Moyer, C J.

{¶ 1} The issue presented in this case concerns the extent to which an expert witness, testifying on direct examination, may make reference to professional literature, which is often referred to as “learned treatises.” We hold that an expert witness may testify that his or her opinions are based, in part, on a review of professional literature. Applying this holding to the facts of the instant case, we reverse the judgment of the court of appeals and reinstate the order of the trial court.

I

{¶ 2} Defendant-appellant, Dr. Oscar Nicholson Jr., performed an elective hernia-repair operation on Ralph Moss. Moss died one week after the operation, and plaintiff-appellee, Charlene Beard, the administrator of his estate, brought a medical-malpractice action against appellant. Appellee alleged, among other things, that appellant should not have performed the operation, given that Moss’s white-blood-cell count on the day before the operation was 2,300, while the reference range for a normal count is 4,500 to 11,000. Appellee asserts that Moss’s low white-blood-eell count prevented him from being able to resist infection and, ultimately, led to his death.

[238]*238{¶ 3} At trial, Dr. Richard Schlanger provided expert testimony on behalf of appellee, and Doctors Franklin Price and Andrew Pietzman testified as expert witnesses for appellant. Appellant also testified as an expert witness in his defense. He stated that his decision to operate on Moss was reasonable because Moss had benign familial neutropenia, a condition characterized by chronically low white-blood-cell counts. According to appellant, patients with benign familial neutropenia do not have a lowered ability to fight infection, despite their lower blood-cell counts. Appellant then testified as follows regarding the standard of care for operating on a patient with this condition.

{¶ 4} “Q. Now, what is the standard of care of a surgeon like yourself regarding what you need in terms of a white blood cell count to safely take a patient with benign familial neutropenia to surgery?

{¶ 5} “A. Patients who have benign familial neutropenia, if they have a complete white blood cell count and complete count meaning neutrophils, basophils, eosinophils and lymphocytes greater than one thousand, one thousand and above. And, this is something that’s documented in the medical and surgical literature.”

{¶ 6} Appellee objected to appellant’s testimony, arguing that appellant’s reference to the medical and surgical literature should be struck as inadmissible hearsay. The trial judge overruled the objection.

{¶ 7} Appellant then testified as follows that he met the standard of care in taking Moss to surgery with a white-blood-cell count of 2,300.

{¶ 8} “Q. Doctor, I’ll ask my question again. Do you have an opinion as to a reasonable degree of medical probability that you met the accepted standard of care in taking Mr. Moss to surgery, with a white blood cell count of 2,300 and no differential, on December 12th, 2000?

{¶ 9} “A. Yes.

{¶ 10} “Q. What is that opinion?

{¶ 11} “A. That opinion is that I met the standard of care to take Mr. Moss to surgery.

{¶ 12} “Q. What is the basis of that opinion, Doctor?

{¶ 13} “A. That opinion is based on the fact that the medical and surgical literature states that patients who have benign familial neutropenia can be operated on safely with white blood cell counts greater than a thousand.”

{¶ 14} Counsel for appellee again objected, arguing that appellant’s second reference to the literature also constituted inadmissible hearsay. The trial court overruled this objection and appellant continued to address the bases for his opinion.

[239]*239{¶ 15} “Q. Doctor, you made reference to the literature in your response. What literature are you referring to?

{¶ 16} “A. There are various review articles in the medical as well as surgical literature that deals [sic] with the benign, the condition of benign familial neutropenia.

{¶ 17} “Q. Is your opinion based also on your education and your training and your experience over the years?

{¶ 18} “A. Yes, it is.”

{¶ 19} The jury returned a verdict in favor of appellant, and the trial court entered judgment consistent with the jury verdict. On appeal, the Eighth District Court of Appeals reversed the judgment and remanded the cause for a new trial, holding that the trial court had committed prejudicial error by admitting appellant’s references to professional literature.

II

{¶ 20} Decisions regarding the admissibility of evidence are within the broad discretion of the trial court. State v. Hymore (1967), 9 Ohio St.2d 122, 128, 38 O.O.2d 298, 224 N.E.2d 126. A decision to admit or exclude evidence will be upheld absent an abuse of discretion. O’Brien v. Angley (1980), 63 Ohio St.2d 159, 164-165, 17 O.O.3d 98, 407 N.E.2d 490. Even in the event of an abuse of discretion, a judgment will not be disturbed unless the abuse affected the substantial rights of the adverse party or is inconsistent with substantial justice. Id.

{¶ 21} Thus, we must first determine whether the trial court abused its discretion by admitting appellant’s testimony. If we determine that the trial court abused its discretion, we must then determine whether appellee’s substantial rights were undermined by admission of the testimony.

A. Abuse of Discretion

{¶ 22} “ ‘The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’ ” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144. We conclude that the trial court did not abuse its discretion in allowing appellant’s testimony, because his references to the professional literature did not constitute inadmissible hearsay.

{¶ 23} Hearsay is defined in Evid.R. 801(C) as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Statements that fall within this definition are not admissible unless an exception is made by the United States or [240]*240Ohio Constitution, by Ohio statute, or by rules prescribed by this court. Evid.R. 802. Because works of professional literature contain statements that if introduced as evidence would fall within the definition of hearsay, and because the Ohio Rules of Evidence, unlike the Federal Rules of Evidence, do not contain a learned-treatise exception to the hearsay rule, such works “are inadmissible as independent evidence of the theories and opinions therein expressed.”1 Piotrowski v. Corey Hosp. (1961), 172 Ohio St. 61, 69, 15 O.O.2d 126, 173 N.E.2d 355. In Piotrowski,

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Bluebook (online)
834 N.E.2d 323, 106 Ohio St. 3d 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beard-v-meridia-huron-hospital-ohio-2005.