holding that an appellate court had erred in approving admission of an illustration from a medical textbook because the illustration was subject to the “learned-treatise hearsay exception set forth in Evid.R. 803(18) and therefore shall not be admitted into evidence as an exhibit over the objection of a party.”
How later courts described this case
- holding that an appellate court had erred in approving admission of an illustration from a medical textbook because the illustration was subject to the “learned-treatise hearsay exception set forth in Evid.R. 803(18) and therefore shall not be admitted into evidence as an exhibit over the objection of a party.”
Written by the judges who cited it.
The opinion
[Cite as Moretz v. Muakkassa, 137 Ohio St.3d 171, 2013-Ohio-4656.]
MORETZ ET AL., APPELLEES, v. MUAKKASSA, APPELLANT, ET AL.
[Cite as Moretz v. Muakkassa, 137 Ohio St.3d 171, 2013-Ohio-4656.]
Trials—Evidence—Hearsay—Learned-treatise exception—Evid.R. 803(18)—
Illustrations from medical textbooks are subject to learned-treatise
hearsay exception and are not admissible into evidence as exhibit over
objection of party—Interrogatories—When both content and form of
proposed interrogatory are proper, Civ.R. 49 requires trial court to
submit interrogatory to jury—R.C. 2317.421—Expert testimony not
required for admission of evidence of write-offs, reflected on medical bills
and statements, as prima facie evidence of reasonable value of medical
services.
(No. 2012-0797—Submitted April 9, 2013—Decided October 24, 2013.)
APPEAL from the Court of Appeals for Summit County,
No. 25602, 2012-Ohio-1177.
________________
SYLLABUS OF THE COURT
1. Illustrations from medical textbooks are subject to the learned-treatise hearsay
exception set forth in Evid.R. 803(18) and therefore shall not be admitted
into evidence as an exhibit over the objection of a party.
2. When both the content and the form of a proposed interrogatory are proper,
Civ.R. 49 imposes a mandatory duty upon the trial court to submit the
interrogatory to the jury.
3. R.C. 2317.421 obviates the necessity of expert testimony for the admission of
evidence of write-offs, reflected on medical bills and statements, as prima
facie evidence of the reasonable value of medical services. (R.C.
2317.421, construed.)
SUPREME COURT OF OHIO
_______________
O’CONNOR, C.J.
{¶ 1} In this appeal, we review four issues from the Ninth District Court
of Appeals, which upheld the trial court’s judgment entering a jury verdict against
appellant, Kamel Muakkassa, M.D., in favor of appellees, Larry J. Moretz and
Nicole L. Moretz. For the reasons explained, we hold that the court of appeals
improperly affirmed the judgment. We conclude that the court of appeals
properly affirmed the trial court’s decision to grant the Moretzes leave to file late
a transcript of a videotaped deposition, because the trial court’s error, if any, was
harmless. But we hold that it improperly affirmed the trial court’s decisions (1) to
admit, over objection, as an exhibit an illustration from a learned treatise, (2) to
refuse to submit a properly drafted interrogatory to the jury, and (3) to prohibit
Dr. Muakkassa from presenting evidence of “write-offs” to contest the Moretzes’
medical bills without a foundation of expert testimony on the reasonable value of
the medical services rendered. We further hold that these errors, taken together,
deprived Dr. Muakkassa of a fair trial. Accordingly, we reverse the judgment of
the Ninth District Court of Appeals, and we remand this case to the trial court for
a new trial.
RELEVANT BACKGROUND
The surgery
{¶ 2} On September 28, 2005, Larry J. Moretz underwent surgery to
remove a grapefruit-sized mass from his pelvis. The mass was discovered in May
2005 when Mr. Moretz sought treatment at an emergency room for pain in his
lower back. The emergency-room physician directed Mr. Moretz to follow up
with his family physician. In turn, the family physician referred him to Dr.
Muakkassa, a board-certified neurosurgeon. Dr. Muakkassa diagnosed an anterior
sacral meningocele.
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January Term, 2013
{¶ 3} A meningocele is a type of congenital cyst. A sacral meningocele
is a cyst located at the lowest part of the spinal cord next to the tailbone.
“Anterior” means that the cyst was growing from the front of the spine or, in other
words, from the back to the stomach. Anterior cysts are rare.
{¶ 4} Dr. Muakkassa recommended that Mr. Moretz consult Gary B.
Williams, M.D., a general surgeon, for removal of the cyst using a laparoscopic
approach. Ultimately, because Dr. Williams’s attempt to remove the cyst
laparoscopically was not successful, he surgically opened Mr. Moretz’s abdomen,
according to the contingency plan. Dr. Williams moved the organs and other
structures out of the way in order to expose the cyst.1
{¶ 5} Once the cyst was exposed, Dr. Williams put a surgical stitch at the
bottom and at the top of the cyst and then cut out the cyst. Dr. Muakkassa entered
the operating room periodically to check on the progress of the procedure and
confirmed for Dr. Williams that the stitches had closed the cyst, so that no
cerebral spinal fluid was leaking. Dr. Muakkassa did not “scrub in,” i.e., he did
not participate in the surgery or perform any part of the procedure himself.
{¶ 6} Dr. Williams submitted tissue from the cyst to a pathologist for
analysis. The pathologist’s report reflected the diagnosis as “soft tissue with a
neurenteric cyst.” A neurenteric cyst is also a type of congenital cyst.
{¶ 7} As a result of the surgery, Mr. Moretz permanently lost bladder,
bowel, and sexual function. The Moretzes filed this action against Drs. Williams
and Muakkassa and alleged that their malpractice had caused Mr. Moretz’s
injuries. The case against Dr. Muakkassa proceeded to trial.
{¶ 8} At trial, the Moretzes contended that Dr. Muakkassa should never
have recommended that the cyst be accessed through Mr. Moretz’s abdomen.
1. The parties do not dispute that only Dr. Williams was qualified to perform laparoscopic surgery
or that only Dr. Williams was qualified to perform surgery to open Mr. Moretz’s abdomen and
move the internal organs to expose the cyst.
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SUPREME COURT OF OHIO
Also central to their case was the nature of the role Dr. Muakkassa was supposed
to play in the removal of Mr. Moretz’s cyst, once it was exposed through the
abdomen.
Motion in limine
{¶ 9} The Moretzes filed a motion in limine that sought to prohibit Dr.
Muakkassa from offering evidence or making any argument at trial that the
reasonable value of the medical services associated with Mr. Moretz’s injuries
was the amount equal to the actual amount accepted as full payment for the
services after the “write-off”2 unless he supported that argument with expert
testimony.
{¶ 10} The trial court granted the motion and held that “the issue here is
not whether Defendant can present evidence of the write-offs, but whether he can
do so without expert testimony in support of this evidence.” The trial court
explained that by enacting R.C. 2317.421, the General Assembly created a
statutory presumption that medical bills reflect the reasonable value of medical
services, but it held that the legislature “has not created any such presumption for
write-off payments.” Accordingly, it held that evidence of write-offs was not
admissible unless Dr. Muakkassa supported it with expert testimony.
Civ.R. 32(A) motion
{¶ 11} On the first day of the trial, after the jury was impaneled and
sworn, Dr. Muakkassa’s counsel orally moved to preclude the Moretzes from
playing the videotaped deposition of their expert witness, board-certified
neurosurgeon Gary C. Dennis, M.D., on the ground that the transcript had not
been timely filed. Civ.R. 32(A) requires that any deposition intended to be used
as evidence “must be filed at least one day before the day of trial or hearing unless
2. “A ‘write-off’ is the difference between the original amount of a medical bill and the amount
accepted by the medical provider as the bill’s full payment.” Robinson v. Bates, 112 Ohio St.3d
17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 10. See also Jaques v. Manton, 125 Ohio St.3d 342,
2010-Ohio-1838, 928 N.E.2d 434, ¶ 14.
4
January Term, 2013
for good cause shown the court permits a later filing.” And although the trial
court acknowledged that the defense was “absolutely correct” that a violation had
occurred, it excused the Moretzes’ failure to file the transcript as “technical
noncompliance” and permitted the video deposition to be played for the jury that
day. Defense counsel had received the video transcript a few days before, and the
trial court concluded that Dr. Muakkassa had not been ambushed by the late
filing. Trial commenced, and the transcript was filed with the court the following
day.
Allegations of malpractice
{¶ 12} At trial, Mr. Moretz testified that after initially meeting with Dr.
Muakkassa and submitting to testing, Dr. Muakkassa explained to him that he had
a hole in his tailbone and the membrane surrounding the spinal cord, permitting
spinal fluid to force its way out. Dr. Muakkassa recommended that Dr. Williams
be consulted so that the possibility of laparoscopic surgery to treat the cyst could
be explored, with the understanding that if laparoscopic surgery failed, Dr.
Williams could open up Mr. Moretz’s abdomen and “move everything out of the
way” so that the cyst could be accessed. Mr. Moretz understood that if an open
surgery took place, once the cyst was exposed, Dr. Muakkassa would remove it
because he was the neurosurgeon and the cyst was attached to the spinal cord.
{¶ 13} The Moretzes also presented the video deposition of Dr. Dennis,
who testified that Mr. Moretz’s surgery required the expertise of a neurosurgeon.
Dr. Dennis described his understanding of the standard of care applicable to a
neurosurgeon when performing a surgical procedure on a meningocele:3
3. Dr. Dennis explained that there is a “covering of the spinal cord that we call the meninges.”
When this “outer envelope” forms a sac or a cyst, it is called a meningocele. A meningocele,
which is a neural-tube-closure defect, can occur anywhere along the spine. He explained that
meningoceles used to be more prevalent until folic acid began to be used as an additive in cereals
in the mid- to late 1990s.
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SUPREME COURT OF OHIO
Well, when you operate on those structures, one thing you
need is you need magnification. So as a general rule, you can use
either loupes, which are little telescopic glasses or you can use a
microscope. * * * And the other is a way to identify the nerves
themselves. One can inspect an area but, usually, when you have
abnormalities that are congenital, sometimes it’s hard to tell a
difference between a piece of fibrous tissue and a nerve.
Especially, when the nerves are little rootlets, which are very tiny.
So in cases like that, we always use a nerve stimulator. That’s, of
course, the way I was trained and that’s the way all neurosurgeons
are trained in the United States.
{¶ 14} Accordingly, Dr. Dennis opined that Dr. Muakkassa proximately
caused Mr. Moretz’s injuries when he breached the standard of care applicable to
a neurosurgeon. First, Dr. Muakkassa failed to “scrub in,” i.e., he did not
physically assist in the removal of the cyst, but merely observed. Second, he
failed to use, or recommend that Dr. Williams use, magnification to identify and
protect the nerves. Third, he failed to use, or recommend that Dr. Williams use,
stimulation to identify and protect the nerves.
{¶ 15} Fourth, Dr. Dennis explained that Dr. Muakkassa had failed to
recommend the best approach for reaching the cyst. He testified that the only
rarity in Mr. Moretz’s condition was the anterior location of the cyst. And his
review of the literature disclosed that it is easier to operate on anterior cysts by
using a posterior approach, i.e., by going through the back, “because then you can
see the origin of the nerve roots.”
{¶ 16} Because Mr. Moretz permanently lost bladder, bowel, and sexual
function as a result of the surgery, Dr. Dennis opined that Dr. Williams had cut
nerves while operating on the cyst. He explained that because Mr. Moretz’s cyst
6
January Term, 2013
had been there for a long time, “the nerves are going to be plastered to the side of
it.” Dr. Dennis acknowledged that the pathologist had found no nerves in the
tissue that was submitted for analysis, but reasoned that the pathologist’s finding
did not undermine his position, because the entire cyst was not excised.
Rebuttal of the allegations
{¶ 17} Dr. Muakkassa testified in his own defense and explained that after
ordering and reviewing CT scans and an MRI, he diagnosed Mr. Moretz as having
an anterior sacral meningocele. He testified that the MRI, which is “extremely
sensitive,” showed that there were no nerves in Mr. Moretz’s cyst. A radiologist
also concluded from the MRI films that there were no nerves in Mr. Moretz’s
cyst.
{¶ 18} In Dr. Muakkassa’s view, there were no nerves in the cyst and thus
the cyst did not require the expertise of a neurosurgeon. The trouble was the
“extremely rare” anterior location of the cyst and the difficulty of getting to it in
the first place.
{¶ 19} Dr. Muakkassa testified that “in the old days,” neurosurgeons had
to treat anterior cysts using a posterior approach. And he acknowledged that
some still do. Dr. Muakkassa testified about advancements in the treatment of
anterior cysts, including removal by general surgeons using laparoscopic
techniques and an anterior approach, which he recommended to Mr. Moretz and
which Mr. Moretz ultimately opted to pursue.
{¶ 20} Dr. Muakkassa understood that if laparoscopic surgery failed, Dr.
Williams would open Mr. Moretz’s abdomen and remove the cyst, and Dr.
Muakkassa would be present to make sure that there was no spinal fluid leaking
after the cyst was closed. Dr. Muakkassa testified that in any event, he was
available to scrub in and physically help Dr. Williams, if he had been needed and
if he had been asked.
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SUPREME COURT OF OHIO
{¶ 21} Dr. Muakkassa testified that he did not use magnification or
encourage Dr. Williams to use magnification because it was not necessary. If
there had been nerves, he contended, they would have been large enough for him
to see with the naked eye, even without scrubbing in. Similarly, he explained that
nerve stimulation, which is used to protect the spinal cord, was not necessary
because “there is no spinal cord in that area to monitor.”
{¶ 22} Dr. Muakkassa testified that he discovered that he was wrong
about Mr. Moretz having a meningocele when he reviewed the report of the
pathologist, who had conclusively determined that the mass was a neurenteric
cyst. And he explained that by definition, neurenteric cysts have no nerves.
{¶ 23} On cross-examination, counsel attempted to elicit testimony from
Dr. Muakkassa that meningoceles located at the anterior sacral position have
nerves. Dr. Muakkassa disagreed.4 At that point, over defense objection, counsel
produced an illustration,5 which had been photocopied from a medical textbook
authored by Edward C. Benzel, M.D. The textbook was entitled “Spine Surgery:
Techniques, Complication Avoidance, and Management,” and the illustration was
entitled, “anterior sacral meningocele.” This exchange then followed:
Q. Doctor, does this accurately depict the anatomy of
an anterior sacral meningocele, do you believe?
A. No.
Q. You don’t. Okay. So you don’t believe there is a
potential for the nerve roots to be over the sac; is that correct?
A. Correct.
4. According to Dr. Muakkassa’s testimony, posterior meningoceles can have nerves when they
occur in children, but anterior sacral meningoceles do not.
5. The illustration was later marked Exhibit 36.
8
January Term, 2013
{¶ 24} Dr. Muakkassa also presented the expert testimony of board-
certified neurosurgeon Mark R. McLaughlin, M.D., who also testified that Mr.
Moretz had a neurenteric cyst, not a meningocele. Dr. McLaughlin explained that
neurenteric cysts are abnormalities that occur while the fetus is forming and that
consist of “an area of tissue that fails to properly form * * * while the tissues are
all migrating into their appropriate position.” “It’s something that is associated
with spinal abnormalities, but it doesn’t have nervous tissue in it; and it’s really
more of a digestive gut abnormality than it is a nervous system abnormality.”
Accordingly, he testified that Dr. Williams, a general surgeon, was the “best
suited doctor” to approach the cyst and that it was “perfectly appropriate” for Dr.
Muakkassa to simply be in the operating room as an advisor.
{¶ 25} On cross-examination, counsel questioned Dr. McLaughlin
extensively about the standard of care for the treatment of meningoceles and, in
doing so, confronted him with Dr. Benzel’s illustration:
Q. And in this authoritative text don’t they show nerve
roots here stretched over the sac?
A. Yes, they do.
Q. You wouldn’t disagree that that is what can occur,
do you?
A. No, that is what can occur. And a neurenteric cyst
can look very similar to that.
{¶ 26} On redirect, the following exchange occurred:
Q. Did anyone identify a nerve coursing over the cyst?
A. No, not in the operative report.
***
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SUPREME COURT OF OHIO
Q. You have been on the stand here on cross-
examination for over an hour and 15 minutes and you have been
asked over and over about the care and treatment of an anterior
sacral meningocele.
Was this an anterior sacral meningocele?
A. No, it was not.
{¶ 27} Dr. Williams also testified.6 He explained that he had assumed that
Dr. Muakkassa would actively participate in Mr. Moretz’s surgery as co-surgeon,
but Dr. Muakkassa did not scrub in. Nevertheless, Dr. Muakkassa was in the
operating room at times during Mr. Moretz’s surgery, and he looked into Mr.
Moretz’s abdomen and observed what Dr. Williams was doing. During the
surgery, Dr. Williams asked Dr. Muakkassa if there was anything special that he
needed to do, and Dr. Muakkassa answered that there was not. Dr. Williams
testified that there was no need for Dr. Muakkassa to scrub in during the surgery.
Even so, at one point he invited Dr. Muakkassa to scrub in, but Dr. Muakkassa
declined and stated that Dr. Williams was doing fine. Indeed, Dr. Williams
testified that had he asked Dr. Muakkassa, “would you scrub in and help me,” he
had “no doubt” that Dr. Muakkassa would have done so.
{¶ 28} On cross-examination, Dr. Williams testified that he is not
qualified to perform neurosurgery and is not trained in the surgical treatment of
meningoceles. He also testified that he had assumed that Dr. Muakkassa would
have taken care of any necessary nerve monitoring, and if Dr. Muakkassa had told
him that he needed to use magnification or stimulation, he would have done so.
6. The record reflects that both parties intended to call Dr. Williams as a witness. For Dr.
Williams’s convenience, the Moretzes agreed to delay their examination of him until after he
testified in Dr. Muakkassa’s case-in-chief.
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January Term, 2013
Admission of the exhibit
{¶ 29} At the close of evidence, the Moretzes moved to admit the
illustration as an exhibit, and Dr. Muakkassa objected on the ground that “the
authoritative text wasn’t cross-examined.” In deciding the issue, the trial court
reasoned that “the fact that this depiction comes from a learned treatise does not
obviate the fact that it is, in fact, an artistic diagram, and as such, presuming it is
properly authenticated as accurately representing the anatomy in question, is
properly admissible.” Because it concluded that Dr. McLaughlin had
authenticated the illustration, the trial court admitted it as evidence.
Rejection of the interrogatory
{¶ 30} Before charging the jury, the trial court reviewed the
interrogatories and verdict forms with counsel. While doing so, it rejected an
interrogatory proposed by Dr. Muakkassa that would have required the jurors, in
the event of an adverse verdict, to specify in what respect he had been negligent.
Defense counsel argued that he thought there were four acts that Dr. Dennis had
described as negligent but that he could only remember (1) the failure to scrub in,
(2) the failure to use magnification, and (3) the failure to use stimulation.7 When
defense counsel told the court that he could not remember the fourth, the
Moretzes’ attorney provided it: “Posterior approach.” Defense counsel agreed,
“Yeah, that he should have used the posterior approach rather than anterior
approach.”
{¶ 31} The trial court held, “I don’t find that there are multiple allegations
of negligence separate and independent from one another, and so I’m not going to
allow that interrogatory.” In the trial court’s view, Dr. Dennis’s criticisms all
7. Although counsel did not specify at the time, the record is clear that Dr. Dennis’s testimony was
also that Dr. Muakkassa breached the standard of care in failing to instruct Dr. Williams to use
magnification and in failing to instruct Dr. Williams to use nerve stimulation.
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SUPREME COURT OF OHIO
boiled down to one allegation: that Dr. Muakkassa breached the standard of care
because he failed to scrub in.
Jury verdict
{¶ 32} Six jurors concluded that Dr. Muakkassa was negligent and that his
negligence proximately caused Mr. Moretz’s injuries. The same six jurors found
the total loss to be $995,428.73. The damages interrogatories disclosed that the
verdict represented $205,828.73 in economic loss, including $125,869.13 in
medical bills, $539,600 in noneconomic loss to Mr. Moretz, and $250,000 in
noneconomic loss to Mrs. Moretz.
{¶ 33} In light of the $500,000 statutory cap on noneconomic damages,
the trial court reduced the award to Mr. Moretz by $39,600. And it granted Dr.
Muakkassa’s motion for setoff due to the settlement reached with Dr. Williams,
thereby reducing the jury verdict by an additional $195,400. After awarding the
Moretzes prejudgment interest, the trial court entered a final judgment against Dr.
Muakkassa in the amount of $953,858.08. Both parties appealed.8 The court of
appeals affirmed.
The Ninth District litigation
{¶ 34} On appeal, Dr. Muakkassa raised four assignments of error that are
relevant here.
{¶ 35} First, he argued that the trial court had abused its discretion by
permitting the Moretzes to play the video deposition of their expert witness, Dr.
Dennis, even though they had not timely filed the transcript of the deposition or
shown good cause for the late filing, as required by Civ.R. 32(A). 2012-Ohio-
1177, ¶ 7. Dr. Muakkassa contended that he would have been entitled to a
directed verdict had the video deposition been properly excluded. But because
Dr. Muakkassa was not surprised or in any way prejudiced by the late filing, the
8. The Moretzes raised one assignment of error, not at issue in this appeal, which unsuccessfully
sought to reverse the setoff. 2012-Ohio-1177, at ¶ 59-60.
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January Term, 2013
Ninth District affirmed the trial court’s decision to permit the video deposition to
be played for the jury. Id. at ¶ 10.
{¶ 36} Second, Dr. Muakkassa argued that the trial court had abused its
discretion when it refused to submit to the jury an interrogatory requiring the
jurors to specify in what respect it found him negligent. According to the court of
appeals, the trial court rejected the interrogatory for two reasons: “(1) all
allegations of negligence were dependent upon his failure to scrub in to the
surgery, and (2) the narrative form was likely to confuse the jury.” Id. at ¶ 14.
Even though it recognized that Dr. Dennis had testified that Dr. Muakkassa
violated the standard of care in three separate ways, the Ninth District affirmed
because “[t]here is no evidence that Dr. Muakkassa could have used either
magnification or nerve stimulation techniques without scrubbing in to the
procedure.” Id. at ¶ 16.
{¶ 37} Third, Dr. Muakkassa argued that the trial court had abused its
discretion by admitting as an exhibit the medical illustration from a learned
treatise. The court of appeals acknowledged that Evid.R. 803(18) permits the
admission of statements from learned treatises only when offered in connection
with an expert witness’s testimony. Id. at ¶ 18. And it acknowledged that learned
treatises “ ‘may not be received as exhibits.’ ” Id., quoting Evid.R. 803(18).
{¶ 38} But because Dr. McLaughlin testified that the illustration is
accurate, that the text is authoritative, and that the relevant chapter is “excellent,”
the court of appeals concluded that the exhibit was properly authenticated, and
therefore admissible, as “an artistic rendering of human anatomy.” Id. at ¶ 19.
{¶ 39} The Ninth District reasoned that Evid.R. 803(18) “is primarily
aimed at passages in treatises containing ‘theories and opinions’ ” of the author.
Id. at ¶ 24, quoting Piotrowski v. Corey Hosp., 172 Ohio St. 61, 69, 173 N.E.2d
355 (1961). The court of appeals concluded that Evid.R. 803(18) did not apply
because the rule was meant to address “statements” and the only statement that
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SUPREME COURT OF OHIO
the medical illustration asserted was that it accurately depicted an anterior sacral
meningocele. Id. at ¶ 25. Because in its view, Dr. McLaughlin adopted that
assertion as his own,9 the court concluded that the illustration was not hearsay and
therefore was not subject to the rule. Finally, the court of appeals concluded that
admission of the exhibit did not prejudice Dr. Muakkassa, because the illustration
did not tend to prove that Mr. Moretz had a meningocele. Id. at ¶ 26.
{¶ 40} Finally, Dr. Muakkassa argued that the trial court incorrectly
excluded evidence of write-offs without expert testimony regarding
reasonableness. The court of appeals affirmed that holding on the ground that the
presumption of reasonableness of medical bills codified at R.C. 2317.421, which
obviates the need for foundational expert testimony, applies to plaintiffs and not
defendants. Id. at ¶ 41-42.
{¶ 41} We accepted Dr. Muakkassa’s appeal under our discretionary
jurisdiction. 132 Ohio St.3d 1481, 2012-Ohio-3334, 971 N.E.2d 960 (accepting
Proposition of Law No. IV); 132 Ohio St.3d 1527, 2012-Ohio-4308, 974 N.E.2d
1206 (accepting Proposition of Law Nos. I, II, and III on reconsideration). The
four propositions of law before us assert:
Proposition of Law No. 1: The Ninth District’s decision
excusing a party from the mandatory filing requirements for
depositions has effectively rendered Civ.R. 32(A) meaningless and
the end result will be uncertainty throughout Ohio as to the
requisite procedures for filing depositions pursuant to Civ.R.
32(A).
Proposition of Law No. 2: The Ninth District’s decision
allowing for the admission of a portion of a medical textbook as a
9. Dr. McLaughlin’s testimony was that a nerve root “can” be stretched over an anterior sacral
meningocele as depicted in the illustration, not that it was in this instance.
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January Term, 2013
trial exhibit is both legally and factually flawed, in direct conflict
with Evid.R. 803(18) and the end result will be uncertainty
throughout Ohio as to the proper use of learned treatises.
Proposition of Law No. 3: The Ninth District’s decision
disallowing a jury interrogatory regarding appellees’ multiple
claims of negligence is legally and factually flawed, is internally
inconsistent and contradictory, is in direct conflict with decisions
rendered by this court and other appellate courts throughout Ohio
and effectively renders Civ.R. 49(B) meaningless.
Proposition of Law No. 4: The Ninth District’s decision
requiring that evidence of “write-offs” of medical bills be
supported by expert testimony is in direct conflict with this court’s
decision in Jaques v. Manton, 125 Ohio St.3d 342, 2010-Ohio-
1838, 928 N.E.2d 434, and has, consequently, redefined the
collateral source rule as set forth by this court.
{¶ 42} We now address each in turn.
ANALYSIS
Civ.R. 32(A)
{¶ 43} The Ninth District properly affirmed the trial court’s decision to
grant the Moretzes leave to file late the transcript of Dr. Dennis’s videotaped
deposition even though the trial court failed to expressly make a determination
that good cause existed for the delay.
{¶ 44} Civ.R. 32(A) provides: “Every deposition intended to be presented
as evidence must be filed at least one day before the day of trial or hearing unless
for good cause shown the court permits a later filing.”
{¶ 45} The rule imposes a mandatory duty to file certain depositions at
least one day before trial. The Moretzes filed the deposition transcript on the
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second day of trial. There can be no dispute that the Moretzes failed to comply
with the timing requirement of Civ.R. 32(A).
{¶ 46} “However hurried a court may be in its efforts to reach the merits
of a controversy, the integrity of procedural rules is dependent upon consistent
enforcement because the only fair and reasonable alternative thereto is complete
abandonment.” Miller v. Lint, 62 Ohio St.2d 209, 215, 404 N.E.2d 752 (1980).
We reaffirm that important principle today. Trial courts have a duty to ensure
proper adherence to the governing rules, including Civ.R. 32(A), in order to
afford fairness to all parties.
{¶ 47} Although the trial court’s duty to enforce Civ.R. 32(A)—including
the duty to permit a late filing for good cause shown—was clear and unequivocal,
its holding in this regard was murky and tentative. The trial court acknowledged
that a late filing can be excused only for good cause, but it failed to make an
express finding on cause. But the court made sufficient inquiry to establish that
Dr. Dennis’s trial deposition was not taken until the Wednesday before trial, July
7, 2010. And on the first day of trial, July 12, 2010, when defense counsel moved
to exclude Dr. Dennis’s videotaped testimony based on the failure to comply with
Civ.R. 32(A), the Moretzes’ counsel told the court that he still had not received a
transcript.
{¶ 48} In deciding whether to permit a late filing, the trial court explained
that the rules, including Civ.R. 32(A), are designed to prevent and guard against
undue surprise and trial by ambush. And it held that “in light of the fact that this
was designated a trial deposition, at all times was described as such for good—I
find that there is no surprise in this matter and that I will permit the playing of the
video deposition despite the Plaintiffs’ technical noncompliance with 32(A).”
(Emphasis added.)
{¶ 49} In explaining its reasons for permitting a late filing, the trial court
used the words “for good,” which we presume was a truncated preamble to a
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January Term, 2013
good-cause finding that the trial court unfortunately never made express.
Moreover, the trial court’s characterization of the Civ.R. 32(A) violation as “a
mere technical noncompliance” was apparently an inartful way of saying “good
cause.” Use of the phrase “technical noncompliance” implies that the trial court
acknowledged the late filing but excused it for a good reason, i.e., good cause.
{¶ 50} In turn, the Ninth District held that “the trial court exercised proper
discretion in determining there was good cause” to permit a later filing. 2012-
Ohio-1177, ¶ 10. In doing so, the court of appeals engaged in an extensive
discussion of why, on this record, a violation of Civ.R. 32(A) could not have
prejudiced or surprised Dr. Muakkassa. To that end, the court of appeals
appropriately gave great weight to the fact that Dr. Muakkassa had ample notice
that the Moretzes intended to use the deposition at trial.
{¶ 51} Specifically, the court of appeals noted that one month before trial,
the Moretzes filed a document entitled “Notice of Videotaped Trial Testimony of
Gary C. Dennis, M.D.,” which reflected that “[t]he videotaped trial testimony will
be used as evidence in the trial of this matter.” And five days before trial, Dr.
Muakkassa’s attorney was in Baton Rouge, Louisiana, actively participating in
Dr. Dennis’s trial deposition. We also note that Dr. Dennis testified that he has an
active neurosurgery practice in Louisiana that calls on him to treat patients on
both emergency and elective bases. In addition to treating patients at his office,
Dr. Dennis provides neurosurgical care at three hospitals that serve “a very large
area in Louisiana.” There is every indication that the timing of Dr. Dennis’s trial
deposition was carefully coordinated by everyone involved, considering the
schedules of one busy physician and three lawyers in the midst of trial
preparation.
{¶ 52} For all of these reasons, we hold that if the trial court committed
any error in failing to expressly determine whether good cause existed for the
delay, on this record, it was harmless.
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Evid.R. 803(18)
{¶ 53} The trial court abused its discretion when it granted the Moretzes’
motion to admit as an exhibit a medical illustration from a learned treatise. In
doing so, it refused to apply the hearsay rule that governs the use of learned
treatises, Evid.R. 803(18).
{¶ 54} In 2006, Ohio amended its hearsay rules by adopting Evid.R.
803(18). 109 Ohio St.3d LXXXI, LXXXVII. This new exception to the hearsay
rule permits the admission of statements from learned treatises during the
testimony of expert witnesses. Evid.R. 803 provides:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
***
(18) Learned Treatises. To the extent called to the
attention of an expert witness upon cross-examination or relied
upon by the expert witness in direct examination, statements
contained in published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art, established as
a reliable authority by the testimony or admission of the witness or
by other expert testimony or by judicial notice. If admitted, the
statements may be read into evidence but may not be received as
exhibits.
(Emphasis added.)
{¶ 55} Evid.R. 803(18) replaced former Evid.R. 706, 109 Ohio St.3d
LXXXI, which permitted the limited use of learned treatises only for
impeachment purposes, and thus prohibited their use during direct examination.
Evid.R. 803(18) was adopted in acknowledgement of the fact that in forming their
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opinions, expert witnesses necessarily rely on “background hearsay * * * in the
form of the out-of-court statements of textbook authors, colleagues, and others.”
2006 Staff Notes to Evid.R. 803(18). “The rule makes explicit the sources of the
expert’s opinion, and in doing so both avoids disputes about the level of detail in
their testimony and assists the trier of fact in evaluating that testimony.” Id.,
citing Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834
N.E.2d 323.
The exhibit was hearsay, subject to Evid.R. 803(18)
{¶ 56} The court of appeals improperly approved the trial court’s
admission of the illustration as an exhibit by reasoning: “Although an illustration
in a textbook could include ‘statements’ of the type Rule 803(18) was meant to
address, exhibit 36 does not.” 2012-Ohio-1177, at ¶ 24.
{¶ 57} We hold that illustrations from medical textbooks are subject to the
learned-treatise hearsay exception set forth in Evid.R. 803(18) and therefore shall
not be admitted into evidence as an exhibit over the objection of a party. The
purpose of a medical illustration is to explicate the medical text. Because an
illustration gives meaning to written statements, textbook authors use them to
more fully explain complex medical concepts, anatomical structures, and
conditions. Thus, they do not differ from text for purposes of the rule. When a
party uses a medical illustration in connection with an expert’s testimony, the
illustration is inextricably intertwined with both the author’s statements and the
testimony of the expert witness. The simple act of separating the illustration from
the text by photocopying does not divorce it from its context or somehow
transform it into a neutral artist’s rendering.
{¶ 58} The exhibit at issue in this case has a heading that reads, “Chapter
83: Anterior Sacral Meningocele.” The medical illustration depicts what appears
to be a cross-section of a spine and various other structures, identified by name,
including a “ventral nerve root transversing pedicle” and the “terminal syrinx.” A
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large balloon-like structure (not identified, but presumably the meningocele)
protrudes in front of the spine, near the end of its length. The balloon has a
darkened spot that is labeled “tumor.” Two thin tubes begin at what is labeled
“spinal cord” and extend to the balloon-like structure. One of the tubes appears to
wrap around it. The tubes are labeled, “nerve root stretched over sac.” Nothing is
labeled “sac.” Underneath the illustration is the following caption: “Figure 83.1
Illustration of a typical anatomic scenario regarding a congenital anterior sacral
meningocele. Intrathecal (filum terminale), intracystic, and extracystic-
intrapelvic tumors may be associated.”
{¶ 59} Exhibit 36 is a highly technical medical illustration that lacks clear
meaning without interpretation from a medical expert. Although the context is
not readily understandable, the illustration plainly makes the “statement” that
nerves coming from the spinal cord are wrapped around a sac. The title and the
caption invite the inference that the sac is a meningocele. And the caption makes
the assertion that the illustration depicts a “typical anatomic scenario.”
{¶ 60} The inescapable conclusion is that the exhibit was offered for the
truth of the matter asserted by Dr. Benzel: anterior sacral meningoceles have
nerves. Accordingly, in light of the objection, the trial court was required to
prevent the jury from receiving the illustration as independent evidence.
{¶ 61} We now turn our attention to an inquiry into the prejudice that
resulted from the trial court’s error.
Admission of the exhibit unfairly prejudiced Dr. Muakkassa
{¶ 62} Dr. Benzel’s medical illustration was evidence bearing on a
dispositive question, i.e., whether Mr. Moretz’s cyst had nerves. By admitting the
illustration as an exhibit, the trial court failed to do what was required, i.e., it
failed to prevent the jurors from giving excessive weight to Dr. Benzel’s
illustration and from interpreting the illustration in the jury room on their own.
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{¶ 63} Evid.R. 803(18) contains “safeguards against unreliability and
misuse”:
Misunderstanding is guarded against by the fact that the statements
in learned treatises come to the trier of fact only through the
testimony of qualified experts who are on the stand to explain and
apply the material in the treatise. The rule provides that the
treatise may be read into evidence but not received as an exhibit to
prevent the trier from giving it excessive weight or attempting to
interpret the treatise by itself.
2006 Staff Notes to Evid.R. 803(18).
{¶ 64} In this case, the Moretzes used the medical illustration as evidence
to bolster their claim that Mr. Moretz’s cyst had nerves in it and to undermine Dr.
Muakkassa’s position that the cyst had no nerves because it was a neurenteric
cyst. Dr. Muakkassa does not object to the Moretzes’ reliance on the illustration.
He objects to its admission into evidence as an exhibit.
{¶ 65} In closing arguments, the Moretzes’ counsel emphasized the
importance of the medical illustration by stating:
We had a drawing up from the book published by Dr. Benzel that
was a representative drawing of an anterior presacral meningocele
of the type Larry had * * *.
***
[J]ust to remind you that Plaintiffs’ Exhibit 36, which you
will get, so, if you so choose, you can look at this * * *. Dr.
McLaughlin, who, by the way, knows that doctor very well who
prepared this text and thinks highly of him, whether this was a [sic]
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representative of a type of cyst that Mr. Moretz had at that time
and he indicated yes, because we were having this dispute about
whether or not there are nerves here.
***
* * * Certainly this is evidence that their expert indicated
this is a cyst of the type that Mr. Moretz had that potentially had
nerve root stretched over it.
(Emphasis added.)
{¶ 66} Dr. Williams testified that he is not qualified to perform
neurosurgery and, likewise, not trained in the surgical treatment of meningoceles.
On the other hand, he does have experience operating on neurenteric cysts. As
the Moretzes’ counsel made clear during closing argument, “There was a fight in
this case as to whether or not it was a meningocele * * *. * * * [I]f it’s not a
meningocele, maybe they are not in the nervous system and maybe they don’t
need a neurosurgeon * * *. You will determine that.” To that end, the Moretzes’
counsel directed the jurors’ attention to Exhibit 36 and stated, “That has nerves in
it.”
{¶ 67} We agree with the Moretzes’ trial counsel that this case hinged on
whether there were nerves in Mr. Moretz’s cyst. The Moretzes prevailed in
convincing enough jurors that there were; they garnered the minimum number of
votes necessary to sustain a verdict in their favor. But they did so by doing an end
run around Evid.R. 803(18). During trial, the Moretzes’ counsel justified using
the illustration to cross-examine Drs. Muakkassa and McLaughlin by invoking
Evid.R. 803(18). As required by Evid.R. 803(18), before using the medical
illustration to cross-examine Dr. McLaughlin, the Moretzes’ trial counsel laid a
foundation by eliciting testimony from him that he believed Dr. Benzel’s medical
textbook was authoritative. But later, when it was time to move for exhibits to be
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admitted into evidence, counsel changed gears and asserted that the illustration
was not hearsay, because Dr. McLaughlin had adopted it as his own statement.
{¶ 68} The trial court accepted the Moretzes’ argument and justified doing
so by relying on an unreported court of appeals case, Robertson v. McCue, 9th
Dist. Summit No. 19539, 2000 WL 14118 (Jan. 5, 2000), that was decided six
years before Evid.R. 803(18) was adopted.
{¶ 69} In Robertson, a physician performed surgery on Robertson’s wrists.
An unsuccessful result led to a malpractice suit. At trial, both parties prepared
diagrams to demonstrate what they believed had happened during surgery. Expert
testimony authenticated the physician’s diagram, but no expert testified as to the
accuracy of Robertson’s diagram.
{¶ 70} The trial court admitted the physician’s diagram but ruled that
Robertson’s was inadmissible because no expert had authenticated it. The jury
returned a verdict for the defense, and the Ninth District affirmed.
{¶ 71} Robertson is factually distinguishable. To begin, the diagram in
Robertson was not an illustration photocopied from a learned treatise. Robertson
involved an original artist’s rendering that was generated for the purpose of
litigation. Moreover, the relevant legal issue in Robertson was authentication of
the exhibit, not whether it was hearsay admissible under an exception that did not
even exist at the time. Even now, authentication is irrelevant under Evid.R.
803(18) because learned treatises are not admissible as exhibits.
{¶ 72} Even if Evid.R. 803(18) had been in effect when Robertson was
decided, the Robertson court would have had no reason to analyze it. The exhibit
in Robertson was not from a learned treatise. By the same token, Robertson gave
the trial court here no justification for ignoring Evid.R. 803(18).
{¶ 73} Nevertheless, the trial court in this case emphasized that the
Robertson court had opined, “Given the technical, and unfamiliar, nature of the
subject matter of this action, the court properly determined that ‘it would be very
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unfair to submit this to the jury without any pictures.’ ” Robertson at *3. Even if
that reasoning had been relevant under Evid.R. 803(18), it directly conflicts with
that rule’s prohibition against jurors interpreting technical and unfamiliar material
in the jury room by themselves, without the aid of an expert. Thus, the trial court
here should have recognized that reliance on Robertson was misplaced.
{¶ 74} Here, Evid.R. 803(18) clearly prohibited admission of the
illustration as an exhibit. Nevertheless, it was so admitted, and the Moretzes’ trial
counsel described the exhibit as proving that “that cyst has nerves.” Whether the
cyst had nerves was central to the case and was hotly contested. In deciding that
issue, the jurors were invited to interpret a highly technical medical illustration in
the jury room, by themselves.
{¶ 75} The trial court was required to exclude the illustration as an exhibit
to prevent the jurors from giving it excessive weight and from attempting to
interpret the material themselves. By failing to do what was required, the trial
court deprived Dr. Muakkassa of his right to a fair jury deliberation.
Proposed interrogatory
{¶ 76} The trial court abused its discretion when it refused to submit to the
jury a properly drafted interrogatory offered by Dr. Muakkassa.
{¶ 77} The interrogatories proposed by Dr. Muakkassa stated:
INTERROGATORY (A):
Have plaintiffs proven by a preponderance of the evidence
that Kamel Muakkassa, M.D. was negligent?
***
IF THE ANSWER OF SIX OR MORE JURORS TO (A) IS
“YES,” COMPLETE THE ANSWER TO
INTERROGATORY (B).
***
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INTERROGATORY (B):
State the respect in which you find Kamel Muakkassa was
negligent.
The trial court rejected Interrogatory (B).
{¶ 78} Civ.R. 49(B) provides:
The court shall submit written interrogatories to the jury, together
with appropriate forms for a general verdict, upon request of any
party prior to the commencement of argument. * * * The
interrogatories may be directed to one or more determinative issues
whether issues of fact or mixed issues of fact and law.
{¶ 79} “The purpose of an interrogatory is to ‘test the jury’s thinking in
resolving an ultimate issue so as not to conflict with its verdict.’ ” Freeman v.
Norfolk & W. Ry. Co., 69 Ohio St.3d 611, 613, 635 N.E.2d 310 (1994). When
both the content and the form of a proposed interrogatory are proper, Civ.R. 49
imposes a mandatory duty upon the trial court to submit the interrogatory to the
jury. See id. A proper interrogatory is designed to lead to “ ‘findings of such a
character as will test the correctness of the general verdict returned and enable the
court to determine as a matter of law whether such verdict shall stand.’ ” Id. at
613-614, quoting Bradley v. Mansfield Rapid Transit, Inc., 154 Ohio St. 154, 160,
93 N.E.2d 672 (1950). Accordingly, “[w]hen the plaintiff’s allegations include
more than one act of negligence, it is proper to instruct the jury to specify of what
the negligence consisted.” Freeman at 614, citing Davison v. Flowers, 123 Ohio
St. 89, 174 N.E. 137 (1930), at paragraph four of the syllabus. We have
repeatedly approved interrogatories requesting the jury to state “ ‘in what respects
the defendant was negligent.’ ” Freeman at 614, quoting Ragone v. Vitali &
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Beltrami, Jr., Inc., 42 Ohio St.2d 161, 327 N.E.2d 645 (1975), at paragraph two of
the syllabus.
{¶ 80} In this case, the trial court was incorrect when it held that all of Dr.
Dennis’s allegations boiled down to a single complaint that Dr. Muakkassa did
not scrub in for surgery.
{¶ 81} Dr. Dennis testified that Dr. Muakkassa breached the standard of
care in four ways: (1) he failed to scrub in to the surgery and operate himself, (2)
he failed to use magnification or recommend that Dr. Williams use it, (3) he failed
to use stimulation or recommend that Dr. Williams use it, and (4) he failed to
recommend a posterior approach.
{¶ 82} Dr. Muakkassa recommended and, in fact, arranged for Mr.
Moretz’s surgery to proceed through his abdomen. Three weeks before the
surgery, Dr. Williams confirmed in writing that Mr. Moretz was scheduled for
surgery on September 28, 2005, and that “[s]urgery will consist of a laparoscopic
excision of a presacral mass, possible open.” Therefore, the allegation that Dr.
Muakkassa was negligent in recommending the anterior approach is immaterial to
when and if Dr. Muakkassa scrubbed in to surgery several weeks later.
{¶ 83} While it is debatable on this record whether a surgeon can use
magnification or stimulation himself if he does not scrub in to the surgery, the
allegations here were also that Dr. Muakkassa was negligent in failing to
recommend that Dr. Williams use magnification and stimulation. Dr. Muakkassa
was in the operating room and observed the surgical field, at which time Dr.
Williams asked for and received his guidance. Dr. Williams testified
unequivocally that he did not need Dr. Muakkassa to do the actual cutting on the
cyst, but that “it made me comfortable that he agreed that what I was doing was
proper.” And although Dr. Williams did not believe that magnification or
stimulation would have made a difference, he testified that he would have used
both, if Dr. Muakkassa had recommended it.
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{¶ 84} Finally, magnification and stimulation are separate tools, which can
be used independently and for different purposes. Magnification makes nerves
more visible, while stimulation identifies nerves too tiny to see with
magnification. Dr. McLaughlin testified that whether magnification is used
depends on how the surgeon was trained, while nerve stimulation is an option
whose use varies by region.
{¶ 85} Accordingly, because several distinct allegations of negligence
were made, Dr. Muakkassa was entitled to have the jury specify of what the
negligence consisted. Moreover, the narrative form of the proposed interrogatory
was proper because it tracked the precise language that we approved in Freeman.
The trial court’s error in rejecting the interrogatory deprived Dr. Muakkassa of his
right to test the jury verdict.
Damages evidence
{¶ 86} The trial court abused its discretion when it prohibited Dr.
Muakkassa from attempting to show that the reasonable value of medical services
is equal to the amount paid after write-offs unless he laid a foundation through
expert testimony.
{¶ 87} On several occasions, we have had the opportunity to clarify the
law on the use of evidence of write-offs in negligence actions. Robinson v. Bates,
112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195; Jaques v. Manton, 125
Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d 434. We have repeatedly
recognized that “either the bill itself or the amount actually paid can be submitted
to prove the value of medical services.” Robinson at ¶ 7.
{¶ 88} In Robinson, we recognized that “R.C. 2317.421 makes * * * bills
prima facie evidence of the reasonable value of charges for medical services.” Id.
at ¶ 9. R.C. 2317.421 provides:
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In an action for damages arising from personal injury or
wrongful death, a written bill or statement, or any relevant portion
thereof, itemized by date, type of service rendered, and charge,
shall, if otherwise admissible, be prima-facie evidence of the
reasonableness of any charges and fees stated therein for
medication and prosthetic devices furnished, or medical, dental,
hospital, and funeral services rendered by the person, firm, or
corporation issuing such bill or statement, provided, that such bill
or statement shall be prima-facie evidence of reasonableness only
if the party offering it delivers a copy of it, or the relevant portion
thereof, to the attorney of record for each adverse party not less
than five days before trial.
{¶ 89} Based on the plain language of the statute, in Robinson we affirmed
the court of appeals’ holding that the trial court had erred when it refused to allow
the original medical bills to be admitted into evidence. Id. at ¶ 9. But we noted
that the court of appeals erred when it held that the collateral-source rule applied
to exclude evidence of write-offs. Id. at ¶ 10. We explained that the collateral-
source rule “prevents the jury from learning about a plaintiff’s income from a
source other than the tortfeasor so that a tortfeasor is not given an advantage from
third-party payments to the plaintiff.” Id. at ¶ 11. And we concluded that the
common-law collateral-source rule does not exclude evidence of write-offs of
expenses that are never paid. A write-off is not a payment, and thus it cannot
constitute payment of a benefit. Id. at ¶ 16. Thus, evidence of write-offs can be
admitted because the tortfeasor “does not obtain a ‘credit’ ” therefrom. Id.
{¶ 90} Moreover, we declined to adopt a categorical rule that the
reasonable value of medical services is either the amount billed or the amount
paid. Id. at ¶ 17. “Instead, the reasonable value of medical services is a matter
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for the jury to determine from all relevant evidence.” Id. “The jury may decide
that the reasonable value of medical care is the amount originally billed, the
amount the medical provider accepted as payment, or some amount in between.”
Id. at ¶ 18.
{¶ 91} In Jaques, we revisited our decision in Robinson in light of the
intervening enactment of R.C. 2315.20,10 which largely abrogated the common-
law collateral-source rule. Id., 125 Ohio St.3d 342, 2010-Ohio-1838, 928 N.E.2d
434, at ¶ 1. We explained that R.C. 2315.20 “pertains only to ‘evidence of any
amount payable as a benefit to the plaintiff.’ ” Id. at ¶ 11. We concluded that our
common-law analysis set forth in Robinson applies equally in the context of the
statute because the statute’s “formulation is no different substantively from the
common-law rule described in Robinson as excluding only ‘evidence of benefits
paid by a collateral source.’ ” (Citation omitted; emphasis sic.) Id. Accordingly,
we reaffirmed that “ ‘[b]oth the original medical bill rendered and the amount
accepted as full payment are admissible to prove the reasonableness and necessity
of charges rendered for medical and hospital care.’ ” Id. at ¶ 15, quoting
Robinson, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, at ¶ 17.
{¶ 92} We reaffirm our holdings in Robinson and Jaques and hold that
pursuant to R.C. 2317.421, evidence of “write-offs,” reflected in medical bills and
10. R.C. 2315.20 provides:
(A) In any tort action, the defendant may introduce evidence of any
amount payable as a benefit to the plaintiff as a result of the damages that result
from an injury, death, or loss to person or property that is the subject of the
claim upon which the action is based, except if the source of collateral benefits
has a mandatory self-effectuating federal right of subrogation, a contractual right
of subrogation, or a statutory right of subrogation or if the source pays the
plaintiff a benefit that is in the form of a life insurance payment or a disability
payment. However, evidence of the life insurance payment or disability payment
may be introduced if the plaintiff's employer paid for the life insurance or
disability policy, and the employer is a defendant in the tort action.
(Emphasis added.)
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statements, is prima facie evidence of the reasonable value of medical services.
But whether this sort of evidence requires the party offering it to lay a foundation
for its admission through expert testimony is an open question. The court of
appeals held that expert testimony is required before evidence of write-offs may
be admitted. The court held that the presumption of reasonableness for medical
bills contained in R.C. 2317.421 does not extend to write-offs, and because the
reasonable value of medical services is outside the common knowledge of
laypeople, expert testimony is necessary as a foundation for presentation of this
evidence to the jury. 2012-Ohio-1177, at ¶ 41. We do not agree.
{¶ 93} Before the enactment of R.C. 2317.421, Ohio courts “require[d] the
usually empty ceremonial of having a doctor testify that the charge * * * made for
a particular service is a reasonable and customary one.” De Tunno v. Shull, 166
Ohio St. 365, 377, 143 N.E.2d 301 (1957) (Bell, J., concurring). R.C. 2317.421
provides that “a written bill or statement, or any relevant portion thereof”
establishes a presumption of the reasonableness of medical charges and fees. At a
minimum, the bills and statements must reflect the date of service, the type of
service rendered, and the original charge.
{¶ 94} The statute refers to “a written bill or statement, or any relevant
portion thereof.” The phrase “any relevant portion thereof” broadens the meaning
of the words “bill or statement” and reflects that the General Assembly intended
the statute to encompass more than just charges. Moreover, there is no language
in R.C. 2317.421 that excludes write-offs from the statutory presumption.
Finally, the statute refers to “the party offering” the bills and statements, which
means that the statutory presumption applies to either party, not just to plaintiffs.
As we explained in Robinson, that language plainly permits plaintiffs to offer the
statements to prove that the reasonable value of the medical services is equal to
the charges. And we explained in Jaques that defendants may offer evidence of
write-offs to prove that the reasonable value of the medical services is equal to the
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January Term, 2013
amount paid after write-offs. There is no basis for requiring expert-witness
testimony that the actual amounts charged for medical services are reasonable,
when the initial charges for the services are admissible into evidence without such
testimony. Eliminating the need for expert testimony allows both parties to avoid
the expense and “the usually empty ceremonial” of expert testimony on
reasonableness. De Tunno, 166 Ohio St. at 377, 143 N.E.2d 301 (Bell, J.,
concurring). Thus, we conclude that R.C. 2317.421 obviates the necessity of
expert testimony for the admission of evidence of write-offs, reflected on medical
bills and statements, as prima facie evidence of the reasonable value of medical
services.
{¶ 95} The write-offs at issue here were reflected on the statements from
Mr. Moretz’s health-care providers. They were, therefore, a “relevant portion” of
the statements, which Dr. Muakkassa was entitled to have admitted without an
expert’s testimony. Accordingly, on remand, Dr. Muakkassa shall be permitted to
argue that the reasonable value of Mr. Moretz’s medical services is the amount
equal to the amount paid after write-offs without supporting that argument with
expert testimony.
CONCLUSION
{¶ 96} The trial court’s order granting the Moretzes leave to file a
transcript of a videotaped deposition even though the filing conflicted with Civ.R.
32(A) was harmless error given the facts of this case. However, the trial court did
abuse its discretion when it admitted as an exhibit an illustration from a learned
treatise offered by the Moretzes, refused to submit to the jury a properly drafted
interrogatory offered by Dr. Muakkassa, and prohibited Dr. Muakkassa from
presenting evidence of write-offs to contest the Moretzes’ medical bills without a
foundation of expert testimony on the reasonable value of the medical services
rendered. We further hold that these errors deprived Dr. Muakkassa of a fair trial.
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Accordingly, we reverse the judgment of the Ninth District Court of Appeals, and
we remand this case to the trial court for a new trial.
Judgment reversed
and cause remanded.
O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
PFEIFER and O’NEILL, JJ., dissent.
_________________
PFEIFER, J., dissenting.
{¶ 97} Most farms look pretty good when viewed from afar. The rows of
crops appear evenly spaced and the barn well painted. The view from the ground
is very different. Due to weather, the crops may be uneven or sparse and the paint
on the barn may be peeling. But, even with these imperfections, the farms are
productive. Unfortunately, the majority opinion in this case gets so caught up in
the imperfect ground view that it overlooks the larger realities. Viewed from the
proper perspective, the verdict in this case is both justified and reasonable.
Moreover, by focusing on the motes, the majority opinion has attacked the trial
court and the court of appeals in a way that is unwarranted and just plain
demeaning.
{¶ 98} This case involves a civil trial where the burden of persuasion is on
the plaintiffs to establish their case by a preponderance of the evidence. Merrick
v. Ditzler, 91 Ohio St.256, 260, 110 N.E. 493 (1915). In a criminal trial, a
defendant is “presumed innocent until proven guilty beyond a reasonable doubt.”
R.C. 2901.05(A). The criminal standard is tougher because “the state has a more
jealous concern for the lives and liberties of its inhabitants than it can possibly
entertain for property rights.” Merrick at 261. The majority opinion turns these
standards on their heads by essentially determining that any error in a civil trial
justifies sending the case back for a new trial. That is not the standard in criminal
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trials, even trials where a person’s life is at stake, and it certainly should not be
the standard in civil trials.
{¶ 99} In criminal cases, we routinely overlook errors that are not
outcome-determinative, even errors that are constitutional in nature. Grundy v.
Dhillon, 120 Ohio St.3d 415, 2008-Ohio-6324, 900 N.E.2d 153, ¶ 27-30; State v.
Jones, 90 Ohio St.3d 403, 422, 739 N.E.2d 300 (2000). Civ.R. 61 embodies this
concept in the civil context. It states that reviewing courts must disregard errors
and defects that do “not affect the substantial rights of the parties.” It also
provides that verdicts will not be vacated unless refusal to vacate would be
“inconsistent with substantial justice.” This rule and our consistent practice
through the years reflect the reality that there is “ ‘no such thing as an error-free,
perfect trial, and * * * the Constitution does not guarantee such a trial.’ ” (Ellipsis
sic.) State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996), quoting
United States v. Hasting, 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96
(1983).
{¶ 100} A structural error is one that affects “ ‘ “the framework within
which the trial proceeds, rather than simply [being] an error in the trial process
itself.” ’ ˮ State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,
¶ 17, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d
222, ¶ 9, quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991). See also Beard v. Meridia Huron Hosp., 106 Ohio St.3d
237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 35 (“An improper evidentiary ruling
constitutes reversible error only when the error affects the substantial rights of the
adverse party or the ruling is inconsistent with substantial justice”).
{¶ 101} Against this backdrop, it is time to examine the errors that the
majority opinion concludes justify setting aside the jury verdict in this case.
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Medical Illustration from a Learned Treatise
{¶ 102} First, it is obvious that the majority opinion correctly concludes
that the trial court erred when it granted the Moretzes’ motion to admit as an
exhibit a medical illustration from a learned treatise. The question thus becomes
whether the introduction of the illustration as an exhibit affected the framework of
the trial. Clearly, it did not.
{¶ 103} The majority opinion places great weight on this illustration,
imbuing it with the power to contort the jury’s deliberations. But there is no
reason to think that that is what happened. The trial lasted four days and
produced nearly 700 pages of transcript. The illustration is discussed on fewer
than ten pages of the transcript. It was offered as a representative of the type of
cyst that Moretz had, and it was authenticated by Dr. Mark R. McLaughlin, one of
the defense’s expert witnesses. Its use during the trial was fine; only its
introduction as an exhibit was improper.
{¶ 104} Dr. McLaughlin, when discussing the illustration, stated that
nerves can occur on an anterior sacral meningocele and that “a neurenteric cyst
can look very similar to” an anterior sacral meningocele. Dr. McLaughlin stated
that nerve roots stretched over the sac “can occur,” indicating the possibility of
nerves, not the reality or the certainty. Similarly, in closing argument, the
Moretzes’ counsel stated that the illustration depicts a cyst that “potentially had
nerve roots stretched over it.” Defense counsel chose not to mention the
illustration in closing, perhaps not wanting to draw the jury’s attention to it. But
the Moretzes’ counsel already had referred to it, and if defense counsel thought
that the illustration was particularly damaging, he could have explained to the jury
why it was misleading or misrepresentative.
{¶ 105} The majority opinion attaches significance to the Moretzes’
counsel referring to the illustration and stating, “That has nerves in it.” But the
defense’s own expert witness had testified, when discussing the illustration, that
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nerves like that “can occur.” Furthermore, the jury knew that the illustration was
just that—“an illustration” of a representative cyst. They knew that it was not
intended to depict the cyst in Larry Moretz’s body.
{¶ 106} There is no reason to believe that admitting the illustration as an
exhibit led the jury astray. There was ample evidence presented throughout the
trial that Dr. Muakkassa did not conduct himself during the surgery as Larry
Moretz thought he would, did not conduct himself as Dr. Williams thought he
would, did not conduct himself as Dr. McLaughlin would have conducted
himself, and did not conduct himself as Dr. Dennis thought he should. That is the
evidence that led to the jury verdict, not the incidental, though plainly improper,
introduction of a properly authenticated illustration as an exhibit.
{¶ 107} Larry Moretz thought that Dr. Muakkassa would be the co-
surgeon, not just an interested academic observer. Dr. Williams also thought that
Dr. Muakkassa would be the co-surgeon, and he testified that he asked Dr.
Muakkassa to scrub in, which Dr. Muakkassa did not do. Dr. McLaughlin
testified that he would have used magnification to search for nerves, that he would
have used stimulation to check for nerves, and that he would have scrubbed in.
Dr. Muakkassa did none of those things. As the majority opinion states:
Dr. Dennis testified that Dr. Muakkassa breached the
standard of care in four ways: (1) he failed to scrub in to the
surgery and operate himself, (2) he failed to use magnification or
recommend that Dr. Williams use it, (3) he failed to use
stimulation or recommend that Dr. Williams use it, and (4) he
failed to recommend a posterior approach.
Majority opinion at ¶ 81.
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{¶ 108} Against this evidence, the majority opinion concludes that the
admission of the illustration as an exhibit was so overwhelmingly prejudicial that
it “deprived Dr. Muakkassa of his right to a fair jury deliberation.” That is
nonsense. To reiterate: use of the illustration did not violate the rules of evidence.
The illustration itself was relevant and properly authenticated. Only the
admission of the illustration as an exhibit was against the rules.
{¶ 109} And the jury had ample other evidence from which to reach a
verdict of negligence. The defense’s expert witness testified that the best way to
remove the cyst was with posterior surgery. Dr. Muakkassa was asked whether
he made any attempt to protect the nervous system. He replied that he had not.
He also testified that he didn’t look to see whether there was a nerve on the cyst
and that he didn’t look for a nerve because he didn’t expect to see one. Against
all of this, the majority opinion suggests that the admission of a properly
authenticated illustration as an exhibit deprived Dr. Muakkassa of a fair trial.
{¶ 110} That brings us to the standard of review on this issue, which is
abuse of discretion. The majority opinion concludes that the trial court abused its
discretion in allowing the illustration to be admitted as an exhibit. Accordingly, a
majority of this court believes that the trial court acted unreasonably, arbitrarily,
or unconscionably, though it does not tell us which. I conclude that admitting the
illustration as an exhibit was not within the discretion of the court, but rather was
error, mere error, and that given the abundance of other evidence presented in
support of the verdict, the error was harmless.
Proposed Interrogatory
{¶ 111} Do we not ask enough of our juries in complicated medical-
malpractice cases? They are already asked to learn obscure terminology and
complex concepts that are not part of their day-to-day world. They are asked to
make fine factual distinctions between reasonable options that have been
explained, often inconsistently, by counsel and by witnesses. They are asked to
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January Term, 2013
absorb lengthy testimony, some of which they are supposed to assume they didn’t
hear, such as after an objection is sustained. They are asked to live for a day, a
week, or a month in an unfamiliar legal environment. We should all be very
thankful for their efforts and impressed with the results they produce. But now, a
majority of this court would have the juries of this state become essay writers.
There is no other way to describe requiring juries to answer open-ended
interrogatories. And there is no better way to induce innocent mistakes on the
part of laypeople.
{¶ 112} The better practice in this case would have been for the defense to
submit a yes/no question as to each issue that the plaintiffs contend was
negligence. That tactic would have adequately tested the verdict without
requiring the jury to write an essay on a topic with which it is generally
unfamiliar. Open-ended prose answers from juries could be a gold mine for
disgruntled defendants. Juries would likely make technical misstatements that
could lead to reversals, even when the jury is justifiably convinced that
negligence occurred.
{¶ 113} In this case, the defense submitted an open-ended interrogatory.
The trial court concluded that the plaintiffs’ case essentially boiled down to one
issue: whether Dr. Muakkassa was negligent in failing to scrub in. It is certainly
arguable that there was more than one respect in which Dr. Muakkassa could have
been deemed negligent. We do not know the logic that animated the trial court’s
decision not to allow the proposed interrogatory, other than what was stated. But
I believe that the trial court wished to avoid requiring the jury to expound in
writing on a complex issue of medical care on which even the experts differed.
Unfortunately, a majority of this court appears to think that that is a grand idea.
{¶ 114} The court of appeals agreed with the trial court that the basic
theory of the plaintiffs’ case was that Dr. Muakkassa was negligent in failing to
scrub in. 2012-Ohio-1177, ¶ 16. I’m not sure I agree with that conclusion, but it
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was not unreasonable. Even if we disagree with that characterization of the case,
even if we would have decided differently, that does not mean that the decision
should be reversed. It can only be reversed if the trial court acted unreasonably,
arbitrarily, or unconscionably. It did not.
{¶ 115} One more aspect of this issue is interesting. The defense did not
submit an alternative interrogatory, though they had ample opportunity. They
should have submitted several: one yes/no question as to each aspect of the
plaintiffs’ case that in defense counsel’s view constituted an allegation of
negligence. Such straightforward interrogatories would have been relatively
simple for the jury to answer without delving into complicated language and
issues, would have properly tested the jury’s verdict, and could not have been
reasonably rejected by the trial court.
{¶ 116} A trial court’s decision to submit interrogatories is reviewed under
an abuse-of-discretion standard. Freeman v. Norfolk, 69 Ohio St.3d 611, 614, 635
N.E.2d 310 (1994). I conclude that the trial court did not act unreasonably,
arbitrarily, or unconscionably in rejecting the proposed interrogatory. I further
conclude that the defense waived its right to complain when it failed to submit
alternative interrogatories.
{¶ 117} By allowing open-ended questions to be asked of juries, Civ.R.
49(B) causes more harm than good. It allows defendants to attempt to confuse or
distract juries, often on minor points that have little or no bearing on the outcome
and the issues they are to decide. The only thing saving the civil-justice system
from daily train wrecks caused by a literal reading of Civ.R. 49(B) is the common
sense and wisdom of trial judges who reject interrogatories that are designed to
confuse or distract. This court should have the sense to affirm trial courts when
they so act, especially when, as here, the defense had the alternative of asking
straightforward yes/no questions that were unlikely to confuse or distract the jury.
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Damages Evidence
{¶ 118} The trial court did not allow Dr. Muakkassa to introduce evidence
to show that the value of the medical services at issue in this case was equal to the
amount paid after write-offs were taken. The court concluded that evidence of
write-offs could be introduced only through expert testimony. The majority
opinion deems this approach an abuse of discretion, even though it calls the
question an “open” one. Majority opinion at ¶ 92.
{¶ 119} The Moretzes introduced evidence of medical expenses by
supplying copies of medical bills to opposing counsel and to the court. Dr.
Dennis also testified as to the necessity and reasonableness of the treatment and
medical bills. Accordingly, these medical bills are presumed to be reasonable.
R.C. 2317.421. When Dr. Muakkassa attempted to present evidence of write-offs,
the trial court refused because he did not have expert testimony in support of his
evidence. The court stated that “assuming you have expert testimony available to
support the reasonableness of that, then you can present the evidence.” This
approach by the trial court does not strike me as unreasonable, arbitrary, or
unconscionable.
{¶ 120} During the trial, the defense had ample opportunity to introduce
evidence about the reasonableness of the write-offs. But when Joanne Smith, a
medical-billing specialist, was on the stand, the defense did not ask a single
question about the medical bills in question. Instead, he focused his questions on
the bill that Dr. Muakkassa presented for his services. The defense did not
question Dr. Dennis or Dr. McLaughlin about the write-offs. Given that the
defense did not proffer evidence of the reasonableness of the write-offs at trial, I
conclude that the defense should be precluded from contesting that issue on
appeal.
{¶ 121} The majority opinion concludes that the trial court abused its
discretion in refusing to allow evidence of write-offs. Even if that were true, this
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error on the part of the trial court does not necessitate a new trial because it can be
easily corrected with a remittitur.
Conclusion
{¶ 122} Larry Moretz has a permanent loss of bowel, bladder, and sexual
function. His condition is inarguably the result of the surgery he underwent.
Whether Dr. Muakkassa was negligent was an issue for the jury to determine. It
had ample evidence before it that he had not been negligent and ample evidence
that he had been negligent. It concluded that he had been negligent.
{¶ 123} The last thing defense counsel told the jury was “I trust this
system. And I will accept your verdict, as will my client * * *.” After deciding
that the best way to treat his patient was a drive-by surgery and after vowing to
abide by the jury verdict, Dr. Muakkassa now declares that justice demands that
he receive a new trial, a new opportunity to convince a fresh jury that the
horrendous outcome in this case should be laid at the doorstep of his colleague,
the general surgeon to whom he referred Moretz. And this court is sanctioning it,
transmogrifying a couple of minor discretionary decisions that did not affect the
outcome of the trial into a miscarriage of justice.
{¶ 124} The jury verdict in this case was proper. The finding of
negligence and the amount of damages do not reflect passion and prejudice.
Nothing in the jury verdict suggests that Dr. Muakkassa did not receive
substantial justice. In short, the jury got it right, and its verdict is not
“inconsistent with substantial justice” within the meaning of Civ.R. 61. The trial
court’s rulings were appropriate, any error was harmless under the circumstances,
and the court of appeals should be affirmed, not chastised.
{¶ 125} We have stated many times that criminal defendants are entitled
to a fair trial, not a perfect trial. A fair reading of the majority opinion leaves one
with the unmistakable impression that from this day forward a doctor in a
medical-malpractice case is entitled to a perfect trial.
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{¶ 126} I dissent.
O’NEILL, J., concurs in the foregoing opinion.
_________________
Mark D. Amaddio Co., L.P.A., and Mark D. Amaddio; and David M.
Todaro Co., L.P.A., and David M. Todaro, for appellees.
Roetzel & Andress, L.P.A., Douglas G. Leak, and Stacy Delgros, for
appellant.
Bricker & Eckler L.L.P., Anne Marie Sferra, and Keesha Warmsby,
urging reversal for amici curiae American Insurance Association, Ohio Alliance
for Civil Justice, Ohio Hospital Association, Ohio Osteopathic Association, and
Ohio State Medical Association.
Dinkler Pregon, L.L.C., Jamey T. Pregon, and Lynnette Dinkler, urging
reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Vorys, Sater, Seymour & Pease, L.L.P., Thomas E. Szykowny, and
Michael Thomas, urging reversal for amici curiae Ohio Insurance Institute and
Property and Casualty Insurance Association of America.
Traska Law Firm, L.L.C., and Peter D. Traska; and Frank A. Ray Co.,
L.P.A., and Frank A. Ray, urging affirmance for amicus curiae Ohio Association
for Justice.
Rhonda Davis & Assoc., L.L.C., and Rhonda Gail Davis; Jacquenette S.
Corgan; Susan J. Lax Law Office and Susan Lax; and Bartek Law Office and
Natalie Niese, urging affirmance for amicus curiae Summit County Association
for Justice.
___________________
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