Opinion
Dec. 8, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
George A. Hinshaw, Aurora, for plaintiff in error.
Wood, Ris & Hames, Denver, for defendants in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear in this court in the same order as they appeared at trial and will be referred to as such.
This is the second appearance for this case in an appellate proceeding. The original case, Dilts v. Baker, 162 Colo. 568, 427 P.2d 882, resulted in a reversal and order for new trial on the issue of damages sustained by plaintiff as result of a rear-end collision caused by defendant. A verdict for plaintiff in the amount of $1328.90 was returned by the jury in this new trial.
Plaintiff now brings appeal on the grounds of misuse of certain hospital records in the trial. He argues that the verdict should be set aside and a new trial ordered.
Plaintiff bases his appeal upon the principle that hospital records are hearsay documents, and may not be introduced into evidence. Panion v. Crichton, 144 Colo. 170, 355 P.2d 938; Young v. McLaughlin, 126 Colo. 188, 247 P.2d 813. In the cases cited by the plaintiff the rule is laid down that hospital records are not directly admissible by reason of their hearsay character. This rule of law, however, is not pertinent to the instant case.
The distinction in the present case is that the evidence objected to concerns records of plaintiff's diagnosis and treatment by certain doctors which evidence was elicited by means of cross-examination of plaintiff's own witness who relied, at least in part, upon the diagnostic tests made by these doctors who were not witnesses in these proceedings. The rule in Colorado is clear that where a testifying physician has based his opinion upon certain medical works, he may be cross-examined on them for purposes of impeachment. Wall v. Weaver, 145 Colo. 337, 358 P.2d 1009; Denver City Tramway Co. v. Gawley, 23 Colo.App. 332, 129 P. 258. This is an example of the application of the general rule that a searching cross-examination of an expert witness is permitted, including the examination of all documents or other works relied upon by the expert in reaching his opinion. Ross v. Colorado National Bank, Colo., 463 P.2d 882.
Reviewing the transcript, we find that the items elicited upon cross-examination which are now objected to by plaintiff, fall into four general categories:
(1) First, is that portion of the hospital record not objected to by plaintiff's counsel. This includes cross-examination of plaintiff's doctor concerning an intern's report about abdominal cramps suffered by plaintiff upon admission. Counsel, however, did not object to the inclusion of this testimony into the record at trial, and thus this court is precluded from considering its admission as reversible error. Howard v. Beavers, 128 Colo. 541, 264 P.2d 858.
(2) Next, we find certain information brought before the jury to be harmless and not of such a nature as would affect the ultimate verdict. This specifically has to do with the nurse's report read to the jury that plaintiff as a patient was given mineral oil daily in conformance with the doctor's orders. The only effect this might have had would be to indicate that plaintiff did follow his doctor's orders in taking medicine. We fail to find this to be prejudicial in effect and will not consider it as meriting reversal.
(3) Next, there are certain items of information objected to by counsel which were sustained by the trial court. Most notably was the attempt by defendants to have plaintiff's doctor read from the hospital record statements made by the admitting personnel. This was successfully objected to, and, consequently, raises no issue for appeal.
(4) The final category of information from the hospital record brought before the jury deals with the results of certain tests and statements by a treating doctor. Specifically objected to were results of a myelogram test, a pathological test, and a statement by one of the doctors treating plaintiff concerning plaintiff's use of alcohol. Plaintiff argues that as these were hearsay, it was error to permit plaintiff's doctor to be examined on the results of these tests so as to bring the results before the jury.
In answer to this argument, we merely note that this information was elicited by means of cross-examination, not to prove the truth of the facts elicited, but rather to show the basis of the opinion of plaintiff's doctor who admitted his reliance on the results of these tests in reaching his opinion. He further admitted to relying, at least in part, upon the diagnosis of the doctor who made the statement concerning plaintiff's use of alcohol. For this reason, we must conclude that no error was committed in allowing this information to be elicited on cross-examination, since these were medical reports relied upon by this expert witness in reaching his conclusions, and therefore come within the ambit of the rule laid down by Wall v. Weaver, Supra.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.