Summary
stating that participating physician had a duty to testify if his testimony will "provide facts which will aid the court in arriving at a just decision" and that "[a]ny loss to the sporting aspect of adversary proceedings would be outweighed by the benefit to the judicial system"
Summary of this case from Ransom v. Radiology Specialists of the Nw.Opinion
No. 38769
Decided May 12, 1965.
Evidence — Malpractice — Expert testimony — Physician defendant — Called as if under cross-examination — Section 2317.07, Revised Code.
In a malpractice action, expert testimony may be elicited from a physician defendant called by plaintiff "as if under cross-examination," pursuant to Section 2317.07, Revised Code.
APPEAL from the Court of Appeals for Cuyahoga County.
This action originated in the Common Pleas Court of Cuyahoga County. Plaintiff, appellant herein, Michael Oleksiw, herein referred to as plaintiff, brought suit against defendants, Michael G. Weidener (Weidner) and Florindo (Fiorindo) A. Simeone, both being physicians, alleging that he was a patient of defendants and was treated by them jointly; that Weidener, acting for himself and Simeone, preformed a bilateral femoral arteriogram upon plaintiff at City Hospital; that this was performed negligently and without plaintiff's consent; and that as a result plaintiff suffered necrosis of his skin and of the underlying tissues, necessitating skin-graft operations.
At the trial, defendants were called for cross-examination pursuant to Section 2317.07, Revised Code. During the examination of defendants, questions were asked which required expert testimony. Objections were made to such questions and sustained by the trial court. The trial court ruled that plaintiff could not ask the defendants any questions calling for expert testimony. Plaintiff did not have any expert medical witnesses testify on his behalf.
The trial court granted defendants' motion for a directed verdict on the issue of malpractice, holding that the medical problem was so involved that without expert testimony a jury could not reach a reasonable conclusion on the issue. The jury returned a verdict for defendants on the remaining issue of technical assault and battery.
On appeal, the judgment was affirmed. The Court of Appeals followed Forthofer v. Arnold, 60 Ohio App. 436, and Wiley v. Wharton, 68 Ohio App. 345, holding that defendants under cross-examination only had to testify as to facts within their own personal knowledge. If plaintiff wanted expert testimony from defendants he should have called them as his own witnesses.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Rini Hecht, Mr. Martin A. Rini and Mr. Donald L. Goldman, for appellant.
Messrs. McNeal Schick and Mr. Harley J. McNeal, for appellees.
The question raised by this appeal is whether in a malpractice action expert testimony may be elicited from a physician defendant called by plaintiff "as if under cross-examination," pursuant to Section 2317.07, Revised Code.
This section provides as follows:
"At the instance of the adverse party, a party may be examined as if under cross-examination, orally, by way of deposition, like any other witness * * *. The party calling for such examination shall not thereby be concluded but may rebut it by evidence."
The obvious purpose of this section is to permit the production of all pertinent evidence in order that the trier of facts might have all the facts necessary to render a just decision. Any relevant evidence is made available to the parties, even evidence in the possession of the adverse party. 56 Ohio Jurisprudence 2d 456, Witnesses, Section 21; cf. State, Use of Miles, v. Brainin, 224 Md. 156, 167 A.2d 117, 88 A.L.R. 2d 1178.
A witness called under this section may be examined "as if under cross-examination." This provision was not intended to restrict the permissible scope of examination but to make clear that the ordinary rules governing direct examination are not applicable to this class of witnesses. Since such witnesses are likely to be hostile and evasive, the method ordinarily used on cross-examination, including leading questions and impeaching the witness, is allowed. See 3 Wigmore, Evidence, 431, 436, Section 916; Langford v. Issenhuth, 28 S.D. 451, 459, 134 N.W. 889.
Other jurisdictions which have considered the question in the instant case under a similar statute are divided. Although the modern trend is to permit the examination of the opponent as an expert, the number of jurisdictions on each side is roughly equal. Annotation, 88 A.L.R. 2d 1186. Although the question has never previously been before this court, the Ninth District Court of Appeals has twice held that in an action for malpractice a plaintiff may not require expert testimony of the defendant physician called for cross-examination. Forthofer v. Arnold, 60 Ohio App. 436; Wiley v. Wharton, 68 Ohio App. 345, 351.
The cases which do not permit a party to elicit expert testimony from his opponent find that such a practice would be contrary to the purpose of the statute. See Osborn v. Carey, 24 Idaho 158, 168, 132 P. 967; Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687; Hunder v. Rindlaub, 61 N.D. 389, 409, 237 N.W. 915; Forthofer v. Arnold, supra, 442. Those cases do not specify anything inherently wrong with examining the opponent as an expert and are general in their reason for finding that the statute was not intended to include such examination. The real basis seems to be that it would not be fair or sporting to allow the plaintiff to force the defendant to become his expert. See 5 Southern California Law Review 448; Ericksen v. Wilson, supra; Hull, Admr., v. Plume, 131 N.J. Law 511, 517, 37 A.2d 53.
No question of fairness should be involved in this matter. A person has no right to remain silent if he has information which is needed in a judicial proceeding. Since the withholding of relevant testimony obstructs the administration of justice, the duty to testify is owed to society not to the individual parties. The question is not whether it is fair for a party to require the adverse party to testify but whether it is fair for society to require a party to testify, where his testimony will aid his opponent. See 8 Wigmore, Evidence (1961), 70, Section 2192; State v. Antill, 176 Ohio St. 61, 64; In re Story, 159 Ohio St. 144, 148, 149.
There is no analogy between a defendant in a malpractice action and a defendant in a criminal prosecution. The latter is specifically exempted from his duty to testify by constitutional protection against self-incrimination. Article V, Amendments, U.S. Constitution; Section 10, Article I, Ohio Constitution. A civil defendant has no protection against subjecting himself to liability. If his testimony will provide facts which will aid the court in arriving at a just decision, he has duty to testify. Any loss to the sporting aspect of adversary proceedings would be outweighed by the benefit to the judicial system.
"Courts are intent upon arriving at just decisions and upon employing properly expedient means to attain such an end. If a defendant in a malpractice action may truthfully testify that his conduct conformed to the standard required, his case is, of course, substantially strengthened and, if he cannot so testify, the plaintiff's chances of recovery are unquestionably increased. In either case, the objective of the court in doing justice is achieved." McDermott v. Manhattan Eye, Ear Throat Hospital, 15 N.Y. 2d 20, 203 N.E.2d 469, 474.
We feel that the cases which permit the plaintiff to call the defendant physician and examine him as an expert represent the more enlightened view. See Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604; State, Use of Miles, v. Brainin, supra; McDermott v. Manhattan Eye, Ear Throat Hospital, supra. The purpose underlying Section 2317.07, Revised Code, would best be served by allowing the examining party to compel all testimony relevant to the issues in the case, and there is nothing in the statutory language which indicates that expert testimony is not included. An adverse party called to testify under this section may be examined as to any relevant matter in issue in a case whether or not it involves expert testimony.
In a malpractice action, expert testimony may be elicited from a physician defendant called by plaintiff, "as if under cross-examination," pursuant to Section 2317.07, Revised Code.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, HERBERT and SCHNEIDER, JJ., concur.
O'NEILL and BROWN, JJ., dissent.