Summary
In Green, the Supreme Court held a hospital record to be inadmissible in that such record contained a statement by a hospital attendant as to the cause of the injury. Such entry was to the effect that the plaintiff had caught her heel and fell off of a streetcar.
Summary of this case from Hytha v. SchwendemanOpinion
No. 31423
Decided December 22, 1948.
Evidence — Hospital record — Uniform Business Records as Evidence Act — Section 12102-23, General Code — Patient's purported statement of cause of accident resulting in injuries — Inadmissible as business record or as statement against interest, when.
1. A hospital record, so far as it pertains to the cause of an accident resulting in injuries to a person causing his resort to a hospital, and not to the medical or surgical treatment of the patient in the hospital, is inadmissible in evidence as a business record within the purview of Section 12102-23, General Code.
2. A purported statement of a patient contained in a hospital record, not made in the regular course of business of the hospital and not pertaining to the diagnosis or treatment of the patient and for that reason inadmissible in evidence within the purview of Section 12102-23, General Code, is inadmissible in evidence as a statement against interest of the patient, where there is no testimony by a witness that the statement was made by the patient to him or to another in the presence of the witness.
APPEAL from the Court of Appeals for Cuyahoga county.
This action originated in the Common Pleas Court of Cuyahoga county. The plaintiff, appellee herein, sued the city of Cleveland, appellant herein, for personal injuries, claiming that, while she was attempting to alight from one of its streetcars on Euclid avenue at East Seventeenth street in that city, the streetcar was prematurely started and then suddenly stopped causing her to fall to the street and sustain severe injuries. The defendant denied generally all substantive allegations of the petition.
The trial of the case resulted in a verdict and judgment for the defendant.
The Court of Appeals for Cuyahoga county reversed the judgment and remanded the cause for further proceedings.
The case is in this court by reason of the allowance of a motion to certify the record.
In the trial court, plaintiff's counsel called as a witness the emergency-room librarian of St. Vincent's Charity Hospital, where the plaintiff was hospitalized, and had her testify from the hospital record relating to plaintiff's hospitalization. Upon cross-examination of the witness by counsel for defendant as to the hospital record, over objection of counsel for plaintiff, the following testimony was adduced:
"Q. Do you have the statement on there as to the history that was obtained from the patient? * * * A. Yes, we do.
"Q. And would you read what your record shows in that regard? * * * A. 'Where happened: 17th and Euclid, Euclid car. How happened: Fell off streetcar, caught heel.' "
In connection with the general verdict for the defendant, an interrogatory was submitted to and answered by the jury as follows:
"Do you find from the evidence in this case that the streetcar remained standing when and at the time that the plaintiff fell? A. Yes."
The defendant claims that the testimony from the hospital record was admissible because it shows that the statement contained in it was obtained from the plaintiff. However, no evidence in the case shows by whom the history was obtained or by whom it was recorded.
The plaintiff, in support of the judgment of reversal by the Court of Appeals, claims that reading from the hospital record the statement of how the accident happened was error, and that such error was prejudicial in that the reading of such statement influenced the jury in its answer to the interrogatory and in rendering its general verdict for the defendant.
Messrs. Harrison, Thomas, Spangenberg Hull, for appellee.
Mr. Robert J. Shoup and Mr. Richard C. Green, for appellant.
The Court of Appeals found that the trial court erred in admitting that part of the hospital record relating to the manner in which the accident to plaintiff happened.
Section 12102-23, General Code, a part of the Ohio Uniform Business Records as Evidence Act, is as follows:
"A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
Under this statute, the admissibility of records as evidence is limited by several specific conditions. As applied to hospital records, the key requirement is that the record must be made in the regular course of the business of the hospital and for the purpose which the record is intended to serve. This court has held, under this statute, that hospital records are admissible in evidence, subject to the requirements and conditions of the statute, so far as such records are of observable facts or events incident to the treatment of the patient and so far as such records are helpful to an understanding of the medical or surgical aspects of his hospitalization. Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245. And this court has held also that a dispensary entry which contained information based on hearsay and describing the manner in which the patient suffered his injury was not admissible. Schmitt v. Doehler Die Casting Co., 143 Ohio St. 421, 55 N.E.2d 644. So, in the instant case, it was the business of the hospital to diagnose plaintiff's condition and to treat her for her ailments, not to record a statement describing the cause of the accident in which plaintiff's injuries were sustained.
It is a generally recognized rule that a hospital record of events or narrations, such as those pertaining to the occasion of the patient's resort to the hospital and having no reference to the medical or surgical treatment in the hospital, is not admissible in evidence. Weis v. Weis, supra; Palmer et al., Trustees, v. Hoffman, Admr., 318 U.S. 109, 87 L.Ed., 645, 63 S.Ct., 477, 144 A. L. R., 719; Sadjak v. Parker-Wolverine Co., 281 Mich. 84, 274 N.W. 719. In the instant case that part of the hospital record entry, "how happened: Fell off streetcar, caught heel," was improperly admitted by the trial court.
The defendant claims also that the hospital record was properly admitted on the ground that it is evidence of a statement of the plaintiff against interest. The rule, now crystallized into statute, making admissible shopbooks and business-record entries made in the regular course of business, is an exception to the hearsay rule, one of the clearly recognized evidence-exclusion rules. And, where a book entry is not of such character as to give it the status of a business entry, admissible in evidence under an exception to the hearsay rule, such book entry is relegated to the status of hearsay and inadmissible under the hearsay rule.
Stripped of the shopbook or business-record quality, the entry in the hospital record as to the manner in which plaintiff was injured renders the record a mere piece of paper, inadmissible in evidence unless made competent by proper evidence. There was no evidence that the statement in this record entry was signed by the plaintiff. The truth of its statement is not admitted by the plaintiff. In these respects, the facts in the instant case are the reverse of those in the case of Shepard v. Whitney National Bank of New Orleans (Louisiana Court of Appeal), 177 So. 825, cited by counsel for the defendant. In the instant case no witness was called to testify that plaintiff made the statement contained in the record to him or to another in the presence of the witness at a certain time or place and under certain circumstances as would be required to prove a statement against interest. The burden of making the evidence offered competent was on the party relying upon it. In the opinion of the court, the record was not admissible as competent evidence of a statement against interest.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TURNER, MATTHIAS and ZIMMERMAN, JJ., concur.
WEYGANDT, C.J., SOHNGEN and STEWART, JJ., concur in the syllabus but dissent from the judgment.
I concur in the syllabus but dissent from the judgment. I am of the opinion that a statement in a hospital record as to the cause of an accident which resulted in injuries to a patient is inadmissible within the purview of Section 12102-23, General Code, and that such a statement should be excluded unless there is evidence that the statement was made by the patient and that it constitutes an admission against interest.
In this case the hospital emergency-room librarian was offered as a witness by plaintiff, and was interrogated as to information in the hospital record, with reference to plaintiff.
On cross-examination by counsel for defendant, such witness was asked:
"Do you have the statement on there as to the history that was obtained from the patient?" (Italics ours.)
Over objection, she answered, "Yes, we do."
She was then asked the question, "And would you read what your record shows in that regard?"
Over objection, she answered, reading, " 'Where happened: Seventeenth and Euclid, Euclid car. How happened: Fell off streetcar, caught heel.' "
In the opinion of the majority it is assumed that the emergency-room librarian made that answer only from the record and that it was objectionable as hearsay.
I cannot see how such an assumption can be made. The witness said that the statement was obtained from the patient. The witness could know that of her own knowledge only if the patient made the statement to her or if she heard the patient make it. If it was claimed that the witness was testifying from hearsay, one or two questions on redirect examination would have tested that fact. But no such questions were asked and the answer that the statement was obtained from the patient was allowed to stand unchallenged. That it was an admission against interest, which plaintiff in effect denied, is shown by plaintiff's testimony that her heels were on her shoes after the accident and that she had told the people at the hospital that she was thrown from the streetcar. Therefore, it seems to me that the statement made by the librarian was admissible, not because it was part of the hospital record but because it was an admission against interest which the librarian testified had been obtained from the patient, plaintiff, herself.
Even assuming that the statement should not have been admitted, there is a grave question whether its admission was prejudicial.
The issue as to negligence in this case was a simple one. If the motorman negligently started the car while plaintiff was alighting from it and she was thrown and injured, she was entitled to recover, whether she caught her heel or was thrown onto the street or the step of the car. If the car was not in motion as she alighted, she was not entitled to recover, whether or not she caught her heel, or wherever she may have been thrown.
The jury answered "yes" to a special interrogatory submitted to it, which read as follows:
"Do you find from the evidence in this case that the streetcar remained standing when and at the time that the plaintiff fell?"
Since the plaintiff could not recover in any event in this case unless she was thrown by the negligent starting or moving of the car by the motorman, it seems to me that substantial justice was done in view of the jury's special finding.
In a case exactly like the present one Judge Spear said:
"The issue thus made was a simple one. Did the accident happen by reason of the negligent starting of the car while the plaintiff was in the act of alighting from it? If it did then she was entitled to recover. If it did not she was not." Cincinnati Traction Co. v. Forrest, 73 Ohio St. 1, 4, 75 N.E. 818.
WEYGANDT, C.J., and SOHNGEN, J., concur in the foregoing dissenting opinion.