Beard v. Meridia Huron Hosp

In Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005 Ohio 4787, 834 N.E.2d 323, the Ohio Supreme Court expressed concern over a type of situation, when discussing the testimony of the defendant-appellant doctor, who had expressed a medical opinion that he had complied with the standard of care for deciding whether to operate on a patient with a low blood count. The Ohio Supreme Court concluded that the doctor's first statement in this context was proper because the doctor had said only that his medical opinion was consistent with medical literature, without citing any statements from the literature. Id. at P 28. However, the court then discussed a second statement of the doctor that was more problematic. In this regard, the court noted that: "Appellant subsequently testified that, in his expert opinion, he had met the standard of care in taking Moss to surgery with a white-blood- cell count of 2,300. His counsel asked him to explain the basis for his opinion, and appellant replied: "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. "This second reference is more problematic than the first because by answering 'the literature states that,' appellant was apparently offering a statement from the literature. However, appellant did not offer precise statements from the literature so that they might be considered independently to prove compliance with the standard of care in Moss's case. Instead, he merely referred to statements in the medical and surgical literature while explaining the basis for his previously articulated opinion that he had met the standard of care in Moss's case. Moreover, he clarified that he was referring, generally, to statements from 'various review articles in the medical as well as surgical literature,' that the literature provided only a partial basis for his opinion, and that his opinion was also based on his education, training, and experience. Pursuant to the Ohio Rules of Evidence, appellant is permitted to testify in this manner." Id. at P 30-32. In Beard v. Meridia Huron Hosp, the Ohio Supreme Court stated that: "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.' Piotrowski v. Corey Hosp. (1961), 172 Ohio St. 61, 69, 15 O.O.2d 126, 173 N.E.2d 355. In Piotrowski, we noted that the reasons for exclusion include the inability to verify the validity of the opinions and conclusions within the works and the lack of opportunity to cross-examine the authors of those opinions and conclusions. If, during direct examination, a witness were permitted to offer statements from professional literature to prove the truth of the matter asserted in those statements, the witness would be acting as a conduit for the out-of-court statements of the authors of those literary works." 106 Ohio St. 3d 237, 2005 Ohio 4787, at P 23, 834 N.E.2d 323. Nonetheless, the Ohio Supreme Court concluded in Beard that an expert's opinion is admissible, where the expert relies, in part, on professional literature in forming his opinion. The court observed that: "There is a difference between a witness's referring to specific statements in professional literature as substantive evidence and an expert witness's referring to the literature as being part of the basis for that expert's opinion. While the former reference would be inadmissible hearsay, numerous courts in Ohio have held that the latter reference is admissible. We agree with the decisions in those cases. "Our decision is consistent with the Ohio Rules of Evidence. Evid.R. 702(B) provides that a 'witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony.' Pursuant to this rule, a witness becomes qualified to testify as an expert by virtue of the fact that he or she has been exposed to and has absorbed information from sources that may not be admissible under the Rules of Evidence. Evid. R. 703 states that an expert witness may base his or her opinion on facts or data 'perceived by him or admitted in evidence at the hearing.' However, we have acknowledged that information that would not be admissible at trial may serve as a basis for an expert's background knowledge without violating Evid. R. 703. Moreover, Evid. R. 706, the rule that permits impeachment with statements from learned treatises, is based on the premise that experts are likely to rely on professional literature in forming their opinions. Cf. Stinson v. England (1994), 69 Ohio St.3d 451, 1994 Ohio 35, 633 N.E.2d 532, paragraph two of the syllabus (holding that 'the substance of a treatise may be employed only to impeach the credibility of an expert witness who has relied upon the treatise or has acknowledged its authoritative nature'). "Experts have been permitted to testify regarding the information that provides the basis for their opinions. Because experts are permitted to base their opinions on their education, including their review of professional literature, training, and experience, it follows that experts are also permitted to testify regarding that information. Accordingly, the Court held that expert witnesses are permitted to testify that their opinions are based, in part, on their review of professional literature." Id. at P 24-26.