Textbook Illustration Inadmissible in Failure to Scrub In

A man presented to the emergency room with lower back pain. A mass in his pelvis was discovered. He followed up with his primary care physician, who referred him to a neurosurgeon. The neurosurgeon determined that the mass was an anterior sacral meningocele, a type of congenital cyst located at the lowest part of the spinal cord next to the tailbone growing from the back towards the stomach.


The neurosurgeon referred the man to a general surgeon to remove the cyst. The attempt to remove the cyst laparoscopically was not successful. So the general surgeon opened the man's abdomen, according to the contingency plan, and moved the organs and other structures out of the way in order to expose the cyst.


The general surgeon performed the procedure while the neurosurgeon entered the operating room periodically to check on the progress of the procedure and confirmed for the general surgeon that the stitches had closed the cyst, so that no cerebral spinal fluid was leaking. The neurosurgeon did not “scrub in,” i.e., he did not participate in the surgery or perform any part of the procedure himself. A pathologist analyzed tissue from the cyst and determined it was soft tissue with a neurenteric cyst, a different kind of congenital cyst.


As a result of the surgery, the man permanently lost bladder, bowel, and sexual function. The man and his wife sued the general surgeon and the neurosurgeon. The case against the neurosurgeon proceeded to trial. At trial, the couple contended that the neurosurgeon should never have recommended that the cyst be accessed through the abdomen. Also central to their case was the nature of the role the neurosurgeon was supposed to play in the removal of the cyst, once it was exposed through the abdomen.


Prior to trial, the court prohibited the neurosurgeon from offering evidence or making any argument at trial that the reasonable value of the medical services associated with the plaintiffs’ injuries was the amount equal to the actual amount accepted as full payment for the services after the “write-off” unless he supported that argument with expert testimony. A ‘write-off’ is the difference between the original amount of a medical bill and the amount accepted by the medical provider as the bill's full payment.


On cross-examination, plaintiff’s counsel attempted to elicit testimony from the neurosurgeon that meningoceles located at the anterior sacral position have nerves. The neurosurgeon disagreed. At that point, over defense objection, counsel produced an illustration, which had been photocopied from a medical textbook. The illustration was entitled, “anterior sacral meningocele.” Plaintiff’s counsel asked the neurosurgeon if the illustration accurately depicted the anatomy of an anterior sacral meningocele. The neurosurgeon disagreed. On cross-examination, plaintiff’s counsel questioned the neurosurgeon’s medical expert about the standard of care for the treatment of meningoceles. In doing so, counsel confronted the expert with the same illustration.


At the close of evidence, the couple moved to admit the illustration as an exhibit. The neurosurgeon objected on the ground that the authoritative text was not cross-examined. The trial court reasoned that the fact that the illustration came from a learned treatise did not obviate the fact that it was an artistic diagram. As an artistic diagram, presuming it was properly authenticated as accurately representing the anatomy in question, the illustration was properly admissible. The court concluded that the neurosurgeon’s medical expert had authenticated the illustration. Thus, the trial court admitted it as evidence.


Before charging the jury, the trial court rejected an interrogatory proposed by the neurosurgeon that would have required the jurors, in the event of an adverse verdict, to specify in what respect he had been negligent. Following the jury trial, the Court of Common Pleas for Summit County entered judgment against the neurosurgeon. The Ninth District Court of Appeals upheld the trial court's judgment.


The Supreme Court of Ohio reversed and remanded for a new trial. The court held that the court of appeals improperly affirmed the trial court decisions (1) to admit, over objection, as an exhibit an illustration from a learned treatise, (2) to refuse to submit a properly drafted interrogatory to the jury, and (3) to prohibit the neurosurgeon from presenting evidence of write-offs to contest the plaintiffs' medical bills without a foundation of expert testimony on the reasonable value of the medical services rendered.


First, the court held that illustrations from medical textbooks are subject to Ohio’s learned-treatise hearsay exception and, therefore, are not admissible into evidence as an exhibit over the objection of a party. Textbook illustrations give meaning to written statements, such that they do not differ from the text. The court reasoned that simply separating the illustration from the text by photocopying does not divorce the illustration from its context or somehow transform it into a neutral artist's rendering. The illustration was offered for the truth of the matter asserted, namely that anterior sacral meningoceles have nerves. Using the illustration in that way fell within the learned-treatise exception to the hearsay rule. Thus, the illustration could not be admitted as an exhibit.


The court found that the neurosurgeon was unfairly prejudiced when the trial court improperly admitted the illustration as an exhibit. The illustration bore on a dispositive question, specifically, whether the cyst contained nerves. By admitting it as an exhibit, the trial court failed to prevent jurors from giving excessive weight to the illustration and from interpreting the illustration in the jury room on their own.


Second, the court held that the neurosurgeon was entitled to have the jury specify by an interrogatory answer in what respect he had been negligent. The trial court erred when it characterized the case as boiling down to a single complaint that the neurosurgeon failed to “scrub in” for surgery. Instead, the case involved expert testimony that the neurosurgeon had also violated the standard of care by failing to recommend that the general surgeon use magnification and nerve stimulation and failing to recommend a posterior approach to remove the cyst.


Third, the court held that evidence of write-offs, reflected in medical bills and statements, was prima facie evidence of the reasonable value of the medical services under the state statute relating to the admissibility of documentary evidence. Thus, the court concluded that expert testimony was not necessary as a foundation for admitting evidence of write-offs as prima facie evidence of the reasonable value of medical services.


See: Moretz v. Muakkassa, 2013 WL 5746117, 2013 -Ohio- 4656 (Ohio October 24, 2013) (not designated for publication).