Summary
In Kraner, the court found that it was prejudicial error to permit expert opinion testimony based upon medical reports not admitted in evidence.
Summary of this case from State v. JonesOpinion
No. 70-307
Decided April 14, 1971.
Evidence — Testimony regarding content of medical report prejudicial, when — Report not in evidence — Reporting physician does not testify.
APPEAL from the Court of Appeals for Licking County.
Plaintiff-appellee, Kathy Kraner, a minor, initiated this action to recover damages for injuries arising from a collision on March 10, 1960, between the school bus in which she was riding and defendant-appellant's tank truck, driven by its employee. Dr. George D. Mogil, Kathy's treating physician, referred her to Dr. Martin P. Sayers who gave her a physical and neurological examination in June 1960. In his deposition, which was admitted in evidence, Dr. Sayers stated that he requested Dr. Milton Parker to administer three electroencephalograms to the plaintiff on June 15, 1960, July 27, 1960, and November 16, 1966. In this deposed testimony, Dr. Sayers testified, without specific objection, regarding the three reports which he received from Dr. Parker. The last time Dr. Sayers saw the plaintiff was on November 16, 1966.
Two weeks prior to the trial in this case, plaintiff's counsel contacted Dr. Beryl Oser in order to make an appointment with him for an examination of the plaintiff. Dr. Oser testified that he examined the plaintiff with the understanding that he would testify at the trial. He referred Kathy to Dr. Parker for a fourth electroencephalogram. By the time of the trial, however, Dr. Oser had not treated the plaintiff. During the trial, Dr. Oser testified, over objection, as to the contents of the December 26, 1968, report which he received from Dr. Parker.
Dr. Parker was not called as a witness, nor were any of the four reports rendered to either Dr. Sayers or Dr. Oser offered in evidence.
The trial judge directed a verdict for the plaintiff at the close of the evidence, leaving to the jury the issue of the amount of damages. The jury returned a $20,000 verdict for the plaintiff, and judgment was entered upon the verdict. Defendant's motion for new trial having been denied by the trial court, the defendant appealed to the Court of Appeals which, by a divided court, affirmed. The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Graham Graham and Mr. Thomas R. Bopeley, for appellee.
Messrs. Reese, Fitzgibbon McNenny and Mr. James H. McNenny, for appellant.
Subsequent to the point at which Dr. Oser related the content of Dr. Parker's fourth report, Dr. Oser responded, over timely objections in each instance, to the critical questions pertaining to the causal connection between the accident and the injury, and as to the permanency of the injury. In those hypothetical questions, the content of Dr. Parker's report, as read and interpreted by Dr. Oser, was specifically emphasized.
I paragraph one of the syllabus of Burens v. Indus. Comm. (1955), 162 Ohio St. 549, this court stated: "The hypothesis upon which an expert witness is asked to state an opinion must be based upon facts within the witness' own personal knowledge or upon facts shown by other evidence." (Emphasis added.)
As the opinions of Dr. Parker contained in the fourth report were not in evidence, and as substantial emphasis was placed upon those opinions in establishing the plaintiff's case, the trial court committed prejudicial error in permitting testimony as to such opinions to be admitted in evidence over objection. Consequently, the judgment is reversed and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.