Opinion
No. 26604
Decided January 23, 1964.
Physician and patient — Malpractice — Evidence — Expert medical testimony necessary, when — To establish facts beyond comprehension of laymen — Defendant called for cross-examination — Section 2317.07, Revised Code — Not required to give expert opinion evidence to prove plaintiff's case.
1. Expert medical testimony is prerequisite to the establishment of medical malpractice, where the facts to be adduced are beyond the comprehension of a layman.
2. A defendant physician in a medical malpractice action may be called as a witness for cross-examination under the provisions of Section 2317.07, Revised Code, but plaintiff may not, over objection, prove his case in chief by the expert opinion evidence of the defendant by such cross-examination. If he desires to adduce defendant's expert opinion evidence he must call him as his own witness.
APPEAL: Court of Appeals for Cuyahoga County.
Messrs. Rini Hecht and Mr. Donald L. Goldman, for appellant.
Messrs. McNeal Schick, for appellees.
This appeal comes to this court upon questions of law from a judgment entered in the Court of Common Pleas upon a directed verdict in favor of defendants.
The petition alleges that both defendant Weidener and defendant Simeone were physicians and that plaintiff was a patient of defendants and was treated by them jointly, and that they consulted with one another and acted in concert in attempting to cure plaintiff of an ailment; that defendant Weidener, acting for himself and defendant Simeone, ordered and performed a bilateral femoral arteriogram upon plaintiff at City Hospital; that this was performed in a negligent manner; and that as a result plaintiff suffered necrosis of his skin and the underlying tissue, necessitating skin graft operations.
During the course of plaintiff's case, the defendants were called for cross-examination pursuant to Section 2317.07 of the Revised Code. Upon cross-examination, certain questions were propounded to defendants that required expert testimony. Objections were interposed to such questions and sustained by the court. Therefore, no expert testimony was elicited from the defendant. Moreover, plaintiff did not have any expert medical witness testify on his part.
The directed verdict was predicated on the absence of expert medical testimony which is a necessary prerequisite to the establishment of medical malpractice when the facts adduced are beyond the comprehension of laymen. A motion for new trial was subsequently overruled.
The plaintiff claims error as follows:
"1. In refusing to permit plaintiff to fully cross-examine defendants in accordance with the terms of Revised Code Section 2317.07.
"2. In removing the issue of medical malpractice from the consideration of the jury, and thereby granting defendants' motion for directed verdict.
"3. In overruling plaintiff's motion for new trial."
The Court of Appeals of this state has twice passed on the question of whether a defendant called for cross-examination in a medical malpractice action can be required to give expert testimony. In Forthofer v. Arnold, 60 Ohio App. 436, it was stated:
"2. In an action against a physician for malpractice, the plaintiff may not, over objection, prove his case in chief by the expert opinion evidence of the defendant physician, where such defendant has been called for cross-examination under the provisions of Section 11497, General Code [Section 2317.07, Revised Code].
This case was followed by the same court in Wiley v. Wharton, 68 Ohio App. 345.
In Osborn v. Carey, 24 Idaho 158, 132 P. 967, it was stated:
"* * * This question was asked [of defendant on cross-examination] for the purpose of advancing plaintiff's case in chief and calls for an expert opinion by the witness. The statute was not intended to enable an adverse party to call an opposing party as an expert and seek to establish his side of the case by such expert evidence. Where a witness is called under the provisions of that act, he may be examined by the adverse party as if under cross-examination, subject to the rules applicable to the examination of other witnesses, but it is contrary to the purpose and reason of that statute to allow the plaintiff to make out his case in chief by expert opinion evidence secured from the defendant on cross-examination. If the plaintiff desires to make his case by expert evidence from the defendant himself, he must call him as his own witness, but is not permitted to do so under the provisions of that statute."
A very recent case (October 4, 1963) pertaining to this subject is Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687, where the Supreme Court of Minnesota said, at page 407:
"Plaintiffs' persistence in attempting to make defendant their expert medical witness under the circumstances of the instant case amounted to improper cross-examination, prejudicial to defendant, and justified curtailment in the discretion of the trial court. An examination of authorities, both local and elsewhere, shows that it is generally held that in medical malpractice actions the plaintiff ought not to be permitted under the guise of cross-examination under the rules to compel expert testimony from the defendant in the hope of proving a case of malpractice without properly calling other expert medical witnesses."
An exhaustive review of this subject can be found in 88 A.L.R. 2d 1186.
While some jurisdictions hold contrary to the above cases, we believe the rule set down by our Ninth Appellate District court and the high courts of our sister states to be salutary, and we therefore adhere to it in this case and overrule this assignment of error.
Defendants under cross-examination would have to testify as to facts within their own personal knowledge, but if plaintiff wanted expert testimony from them he should have called them as his own witnesses. Under Ohio law they could have been compelled to give such testimony. See State, ex rel. O'Neall, v. Darby, 9 Dec. Repr. 725; Pengelly v. Ashland County Commissioners, 11 O. D. 620, 8 N. P. 386.
As to assignment of error No. 2, in order to submit a medical malpractice case to a jury without adducing expert testimony, the negligence of the physician must be so manifest as to be within the comprehension of a layman. See Modrzynski v. Lust, 55 Ohio Law Abs. 106. We hold that in this case expert testimony was necessary to establish medical malpractice and since none was produced, we overrule this assignment of error.
As to assignment of error No. 3, in view of our foregoing determination, we find that the trial court did not err in overruling plaintiff's motion for a new trial, and thus this assignment of error is overruled.
Judgment affirmed.
SKEEL, C. J., SILBERT and CORRIGAN, JJ., concur.