Guarino-Wong v. HoslerGuarino-Wong v. Hosler
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 24, 2013
Robbins, Kelly, Patterson & Tucker and Daniel Temming, for Plaintiffs-Appellants,
David J. Balzano, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
{¶1} Plaintiffs-appellants Candice Guarino-Wong and Gary Wong commenced this personal injury action against defendant-apрellee Leah Hosler. Hosler had rear-ended Guarino-Wong in an automobile accident, and Guarino-Wong sought to recover for damages that she had suffered, including damages for medical expenses, lost wages, physical and mental pain and suffering, impairment of normal life enjoyment, and future pain and suffering. Gary Wong had sought damages for the loss of his wife’s consortium. Following a jury trial, Guarino-Wong was awarded $10,968.40, an amount significantly less than that which she had sought to recover.
{¶2} This appeal concerns the propriety of the trial court’s admission of a medical report issued by Dr. George Jewell, who had examined Guarino-Wong but did not provide testimony in this case, as well as trial testimony from Drs. Henry Kenkel and Thomas Bender concerning Dr. Jewell’s report.
Dr. Jewell’s Report
{¶3} Following the automobile accident that occurred in July of 2008, Guarino-Wоng had received treatment from Dr. Henry Kenkel. In 2011, Dr. Kenkel referred Guarino-Wong to Dr. Jewell for a neuropsychological examination. After examining Guarino-Wong, Dr. Jewell issued a report detailing his findings. Dr. Jewell’s report summarized the symptoms experienced by Guarino-Wong and provided conclusions and opinions reached by Dr. Jewell. As relevant to this appeal, Dr. Jewell had concluded that Guarino-Wong had put forth a limited test taking effort during her evaluation, that she was likely to see herself as having a history of
{¶4} Guarino-Wong did not present Dr. Jewell as a witness at trial. But she did present testimony from Dr. Kenkel, who opined that, in his expert opinion, Guarino-Wong’s injuries were causally related to the automobile accident, and that the treatment that he had rendered to Guarino-Wong following the automobile accident had been necessary for her recovery. On cross-examination, defense counsel questioned Dr. Kenkel regarding his referral of Guarino-Wong to Dr. Jewell for a neuropsychological examination. Dr. Kenkel stated that he had received a copy of Dr. Jewell’s report on Guarino-Wong, and that the report had become a part of his chart. Over objection, Dr. Kenkel read various portiоns of Dr. Jewell’s report, including Dr. Jewell’s opinion that “[o]verall she does not describe a pattern of cognitive improvement over time as is typical of mild traumatic brain injury.”
{¶5} Hosler presented testimony from Dr. Thomas Bender, who had performed an independent medical examination on Guarino-Wong. Dr. Bender opined that, in his expert opinion, Guarino-Wong’s herniated disk and bulging disk were caused by chronic degeneration, rather than the automobile accident, and that certain treatment received by Guarino-Wong following the automobile accident had not been necessary. Dr. Bender further testified that he had reviewed the report issued by Dr. Jewell, and over objection he summarized and read for the jury various findings and conclusions reached by Dr. Jewell in that report.
{¶6} At the close of trial, Dr. Jewell’s report was admitted into evidence over objection from Guarino-Wong. The jury returned a verdict in the amount of $10,958.40. Guarino-Wong filed a motion for a new trial under
{¶7} Guarino-Wong now appeals. In her first three assignments of error, she argues that the trial court erred in allowing Dr. Bender to read from Dr. Jewell’s medical report, that the trial court erred in allowing Dr. Kenkel to read from Dr. Jewell’s report, and that the trial court erred in admitting into evidence the written report of Dr. Jewell. We address these assignments together.
Evid.R. 803(4) and Evid.R. 803(6)
{¶8} Both Guarino-Wong and Hosler agree that the statements contained within Dr. Jewell’s report are hearsay. See
{¶9} Hoslеr argues that the report and statements read from the report are admissible pursuant to
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment.
We are not persuaded by this argument. The report prepared by Dr. Jewell contains both statements by Guarino-Wong explaining her symptoms, as well as medical opinions and conclusions reached by Dr. Jewell. The statements read from the report by Drs. Kenkel and Bender were opinion and diagnostic statements from Dr. Jewell.
{¶10}
{¶11} Because Dr. Jewell’s report contained statements and opinions formulated by the doctor himself, and because Drs. Kenkel and Bender read Dr. Jewell’s opinions from the report,
{¶13} Medical records are one type of record that may be admissible under this hearsay exception. But we find that
{¶15} We further find that Dr. Jewell’s report and the testimony regarding the report were inadmissible under
{¶16} After comparing the state and federal rules, the Smith court noted that
Because the federal rule setting forth the hearsay exception regarding records of regularly conducted business activity was adopted, at least in part, to reflect the common law of this state, we cannot say that the omission of the words ‘opinion’ and ‘diagnoses’ in
Evid.R. 803(6) reflects an intent to preclude the admissibility of an otherwise qualified medical report or record under that exception merely because the report or record contains out-of-court opinions or diagnoses.
Smith at *23-24. The Smith court ultimately held that otherwise admissiblе medical records could not be excluded under
{¶17} But other districts have joined the Meyers court in concluding that medical records containing opinions and diagnoses are not admissible under
{¶19} Dr. Jewell’s report largely supported the testimony of Hosler’s expert. The report had concluded that Guarino-Wong had not suffered a traumatic brain injury in the accident, and that she likely saw herself as having a history of complex medical problems, even though she appeared relatively healthy to othеrs. Given the nature of this testimony, we cannot say that it did not affect Guarino-Wong’s substantial rights or the outcome of the trial. The admission of this evidence constituted reversible error. The first, second, and third assignments of error are sustained.
Motion for a New Trial
{¶20} In her fourth assignment of error, Guarino-Wong argues that thе trial court erred in overruling her motion for a new trial. Pursuant to 1st Dist. Loc.R. 16.1(A)(3), an appellant must provide the relevant standard of review along with
Conclusion
{¶21} The trial court erred in allowing Drs. Kenkel and Bender to substantively read from a medical report issued by a doctor who had examinеd Guarino-Wong but had not testified at trial, and by admitting that medical report into evidence. Because the admission of this hearsay evidence affected Guarino-Wong’s substantial rights, the judgment of the trial court is reversed. This cause is remanded for further proceedings consistent with the law and this opinion.
Judgment reversed and cause remanded.
DINKELACKER, J., concurs.
DeWINE, J., concurs in judgment only.
Please note:
The court has recorded its own entry on the date of the release of this opinion.