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reasoning that "[w]here ... the author publishes an article with a view toward litigation, or where he possesses a personal interest in a litigable matter, a probability of bias exists which undermines the logic supporting the admission of this material in evidence as an exception to the rule against hearsay"; and thus concluding that the admission of excerpts from an editorial published in the Journal of the American Medical Association during cross-examination of plaintiff's expert was error because the editorial was not an "authoritative exposition of medical theory or principle" that might be characterized as "learned treatise," but was primarily an expression of opinion by physician concerning controversial subject which posed risk of litigation for his colleagues in the medical profession
Summary of this case from Moore v. Wellstar Health Sys., Inc.Opinion
No. 79-1309
Decided July 16, 1980.
Malpractice — Physicians — Trial — Evidence — Admissibility of editorial in journal prejudicial, when.
APPEAL from the Court of Appeals for Cuyahoga County.
On October 12, 1973, appellants, Alice R. O'Brien and her husband, John J. O'Brien, instituted suit in the Court of Common Pleas of Cuyahoga County, to recover damages from appellees, Dr. Nabil F. Angley, Dr. Charles P. Bartley and Lakewood Hospital, and from defendant Schering Corporation, for alleged negligence and medical malpractice.
The record indicates that appellants voluntarily dismissed Schering Corporation from the instant cause.
The evidence adduced at trial reveals that Mrs. O'Brien (hereinafter appellant) suffered from chronic osteomyelitis for approximately 25 years. In August of 1972, she experienced a recurrence of the disease and became a patient of Dr. Angley, an orthopedic surgeon. Thereafter, she was admitted to Lakewood Hospital, where Dr. Bartley, a colleague and partner of Dr. Angley, became involved in her treatment.
On September 21, 1972, appellant underwent an operation performed by Dr. Bartley, wherein certain infected areas in her pelvic region were excised and drained. Subsequently, on September 24, 1972, a hospital resident, Dr. G. Raj, prescribed 40 milligram injections of Garamycin every eight hours. Appellant's dosage was increased to 80 milligrams every eight hours by Dr. Bartley until October 12, 1972, when the injections were terminated.
The evidence adduced at trial shows that the recommended dosage of Garamycin for a person of appellant's weight, as set forth by the Schering Corporation's product insert, is 60 milligrams three times daily. However, for a patient determined to be in a life threatening condition, the manufacturer recommends a dosage for a person of appellant's weight of approximately 77 milligrams three times daily. The product insert indicates further that use of Garamycin in excess of recommended dosages might cause certain side effects, including impairment of the auditory function. The evidence is undisputed that appellant was not informed of this potential adverse consequence of using Garamycin.
On October 20, 1972, appellant experienced dizziness and partial hearing loss. On November 9, 1972, she consulted an otolaryngolist who diagnosed her problem as gentamicin ototoxicity; a loss of hearing due to a toxic reaction to Garamycin.
At trial, appellants alleged in essence that the failure to inform Mrs. O'Brien of the potential adverse consequences of receiving Garamycin in excess of that recommended by its manufacturer constituted the negligent administration of the drug. Appellants' expert witness, Dr. Harvey L. Dannis, testified that the dosage of Garamycin Mrs. O'Brien received, and the duration of its use, deviated from generally accepted standards applicable to orthopedic surgeons in 1972, and that in such a situation a "patient should have been***[informed] and given a choice." Upon cross-examination of Dr. Dannis, the record reflects the following colloquy between Dr. Dannis, the litigants, and the trial court:
"Q. Doctor, are you familiar with the medical publication commonly referred to as JAMA, all capitalized, J-A-M-A, Journal of American Medical Association?
"A. Yes, sir. They were sending it to me.
"***
"Q. And you would consider it authoritative, would you not, sir?
"A. Yes, sir.
"Q. O.K. Quoting from an article from the Journal of the American Medical Association, sir, dated July 21, 1975, Volume 233, No. 3, let me read a paragraph to you and you tell me if you agree. By the way, this is an editorial edited or written by John D. Archuer, M.D., senior editor or —
"MR. PEDLEY: If your Honor please, I object to that.
"THE COURT: Overruled.
"Q. This is what it says, Doctor —
"***
"Q. This editorial says as follows:
"`The best medicine often requires that a physician depart from packaged insert recommendations. Naturally, such departure should be based on solid, scientific evidence and sound judgment, even though in circumstances, however, a disagreeable reality must be recognized. A physician who deviates from the manufacturer's recommendations in prescribing a drug may be confronted by that literature in court if something goes wrong. Of course, such literature is subject to rebuttal. Nevertheless, if all goes well at the trial, the competent and exonerated physician has still been subjected to a harrowing and grotesque experience —'
"MR. PEDLEY: If your Honor please, I object.
"MR. GOLDWASSER: I am not through, your Honor.
"MR. PEDLEY: I don't think the philosophy of an editor of JAMA —
"MR. GOLDWASSER: May I finish my question, please.
"THE COURT: Overruled.
"Go ahead.
"MR. PEDLEY: Excuse me, go ahead.
"Q. And it reads further: `That fact leads to a decision that must often be made in the practice of medicine. Physicians must squarely acknowledge certain alternatives. One is to practice defensive medicine, never varying from package insert recommendations, recognizing that sometimes this will deprive patients of optium care, but hopefully that it may diminish a degree of litigation risk. The other is to use drugs according to the carefully-determined medical needs for them, and if harm unfortunately is attributed to some unlabeled use, to assume or at least to hope if the case will be tried properly; that insofar as the package insert becomes involved, it will be considered in the light of how well it reflects prescribing the standards and not in the sense that it sets them.'
"Do you agree with that statement as written by John D. Archuer, M.D.?
"MR PEDLEY: Your Honor, I object. I ask that that be stricken. I ask the jury be instructed to disregard it.
"THE COURT: Overruled. The witness may comment as he sees fit."
Upon submission of all the evidence, the trial court directed a verdict in favor of the Lakewood Hospital. After rejecting most of appellants' proposed jury instructions, the cause was submitted to the jury, which rendered a verdict in favor of appellees.
Upon appeal, the judgment of the lower court was affirmed. The Court of Appeals dismissed the appellants' contention that the admission of excerpts of the editorial published in the Journal of the American Medical Association was prejudicial error. The court also affirmed, on the authority of Johnson v. Grant Hospital (1972), 32 Ohio St.2d 169, 291 N.E.2d 440, the trial court's dismissal of Lakewood Hospital from the action.
Appellants raise as error the dismissal of Lakewood Hospital from the instant cause. However, we agree with the Court of Appeals that Johnson v. Grant Hospital, supra ( 32 Ohio St.2d 169), is dispositive of this issue.
The cause is now before this court upon the allowance of a motion to certify the record.
Messrs. Rini, Cosiano Pedley, Mr. Martin A. Rini and Mr. E.A. Pedley, for appellants. Reminger Reminger Co., L.P.A., and Mr. Gary Goldwasser, for appellees, Drs. Angley and Bartley.
Messrs. Weston, Hurd, Fallon, Paisley Howley and Mr. Jerome S. Kalur, for appellee Lakewood Hospital.
Appellants argue that it was prejudicial error for the trial court to allow appellees, over appellants' objection, to introduce in evidence excerpts from the editorial published in the Journal of the American Medical Association, since the thrust of the article involved litigable matters and its effect was to excite sympathy for appellees' cause.
The scope of cross-examination and the admissibility of evidence during cross-examination are matters which rest in the sound discretion of the trial judge. Thus, when the trial court determines that certain evidence will be admitted or excluded from trial, it is well established that the order or ruling of the court will not be reversed unless there has been a clear and prejudicial abuse of discretion. State v. Lane (1976), 49 Ohio St.2d 77, 358 N.E.2d 1081; State v. Bayless (1976), 48 Ohio St.2d 73, 357 N.E.2d 1035; Smith v. State (1925), 125 Ohio St. 137, 180 N.E. 695; Lima v. Freeman (1971), 27 Ohio App.2d 72, 272 N.E.2d 637.
Furthermore, it is generally recognized that the trial court's discretion in regulating the admissibility of evidence includes controlling the extent to which learned treatises may be used in the cross-examination of expert witnesses. Dolcin Corp. v. Federal Trade Comm. (C.A.D.C., 1954), 219 F.2d 742, certiorari denied, 348 U.S. 981; Lawrence v. Nutter (C.A. 4, 1953), 203 F.2d 540; Fonda v. Northwestern Pub. Serv. Co. (1940), 138 Neb. 262, 292 N.W. 712. Although the admission of learned treatises in evidence would constitute a violation of the rule against the admission of hearsay evidence, in that such evidence purports to employ testimonially a statement made out of court by a person not subject to cross-examination, 5 Wigmore on Evidence (Chadbourn Rev.), 2, Section 1362, and 6 Wigmore on Evidence (Chadbourn Rev.), 3, Section 1690, the primary justification for admitting such evidence as a limited exception to the hearsay rule is predicated upon consensus that learned treatises are inherently more trustworthy than customary forms of hearsay. 4 Weinstein's Evidence, 803-253, Section 803 (18) [01]. This view is founded upon a recognition that learned treatises are ordinarily written for members of the author's profession and, therefore, the author is thought to have no motive to misrepresent the material construed therein. A powerful incentive exists to publish a work which will be accepted by the other members of the author's profession as a fundamentally sound and authoritative exposition of the subject. Where, however, the author publishes an article with a view toward litigation, or where he possesses a personal interest in a litigable matter, a probability of bias exists which undermines the logic supporting the admission of this material in evidence as an exception to the rule against hearsay. Such publications do not as a matter of course fall within the learned treatise exception to the hearsay rule. 6 Wigmore on Evidence, supra, at page 6, Section 1692.
As an example of a publication whose trustworthiness should be circumspectively reviewed, 6 Wigmore on Evidence, supra, states at pages 6-7:
"When an expert employed by an electric company using an alternating or the single current writes an essay to show that the alternating current is or is not more dangerous to human life than a single current, the probability of bias is plain;***."
In our view, the admission of excerpts of the editorial published in the Journal of the American Medical Association was prejudicially erroneous, as a perusal of that article indicates that it was written with a view toward litigation, and lacked the requisite indicia of objectivity and trustworthiness essential to the admissibility of such material in evidence. This editorial was not an authoritative exposition of medical theory or principle which might be characterized as a "learned treatise," but was primarily an expression of opinion by a physician concerning a controversial subject which posed a risk of litigation for his colleagues in the medical profession.
It should be noted that the erroneous admission in evidence of "learned treatises" will not justify reversal of an otherwise valid adjudication where the error does not affect substantial rights of the complaining party, or the court's action is not inconsistent with substantial justice. Civ. R. 61; R.C. 2309.59; Annotation, 60 A.L.R. 2d 77, Sections 2, 10. Paragraph three of the syllabus in Hallworth v. Republic Steel Corp. (1950), 153 Ohio St. 349, 91 N.E.2d 690, states:
"Generally, in order to find that substantial justice has been done to an appellant so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probably have made the same decision."
It is our conclusion that substantial justice has not been done, and that the trier of the facts would probably not have reached the same conclusion had this error not occurred. The admission of the editorial as a basis to contradict appellants' expert witness, when the publication did not qualify as a "learned treatise," placed before the jury hearsay evidence which appellants were unable to rebut by way of cross-examination. Furthermore, several passages in the editorial contained references to matters prejudicial to appellants' cause, and which had no apparent relevance to the cause except to elicit sympathy from the jury. See Westinghouse Electric Corp. v. Dolly Madison Corp. (1975), 42 Ohio St.2d 122, 326 N.E.2d 651; cf. Hallworth v. Republic Steel Corp., supra.
For example, the publication states:
"[N]evertheless, if all goes well at the trial, the competent and exonerated physician has still been subjected to a harrowing and grotesque experience."
Appellants also challenge the trial court's instructions to the jury. Based upon the authority of Congrove v. Holmes (1973), 37 Ohio Misc. 95, 308 N.E.2d 765, appellants requested the trial court to give the jury the following instruction:
"If you find by a preponderance of the evidence that Dr. Bartley or Dr. Angley ordered Garamycin to be administered to plaintiff, Alice R. O'Brien, with her consent, if any, and if you find that in securing said consent, Dr. Bartley or Dr. Angley failed to fully inform plaintiff of the potential side effects of said procedure, then said consent is no consent. And if you further find that as a direct result, plaintiff suffered loss of hearing, your verdict must be for plaintiff."
The trial court refused to submit appellants' instructions to the jury, and gave instead its own instruction on the law of informed consent. We determine that appellants' proposed instruction to the jury is based upon a misinterpretation of Congrove, supra. In our opinion, Congrove does not, nor does any holding of this court, mandate a jury instruction to the effect that a medical practitioner must, prior to administering a course of treatment, fully inform his patient of the potential side effects of the proposed medical procedure. Therefore, the trial court properly rejected appellants' proposed jury instruction.
In Brumi v. Tatsumi (1976), 46 Ohio St.2d 127, 346 N.E.2d 673, this court rejected the argument that plaintiff's consent to surgery was ineffectual because she had not been adequately informed of the procedure administered to her. The court determined, at page 137, that the "plaintiff***either personally or through her husband and parents, was fully informed of the facts concerning each operational procedure to be performed***." (Emphasis added.) This ruling, based upon the facts and record presented in Bruni, should not be construed to mean that the disclosure found acceptable in Bruni represents the minimum disclosure required as a matter of law. In view of our resolution of the instant cause, and our lack of advisory jurisdiction, that question is reserved by this court for future determination.
In view of the foregoing, the judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, O'NEILL, SWEENEY, LOCHER and HOLMES, JJ., concur.
O'NEILL, J., of the Seventh Appellate District, sitting for P. BROWN, J.