[Cite as Gallagher v. Firelands Regional Med. Ctr., 2017-Ohio-483.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


James P. Gallagher, et al.                                 Court of Appeals No. E-15-055

        Appellees                                          Trial Court No. 2013 CV 0390

v.

Firelands Regional Medical Center                          DECISION AND JUDGMENT

        Appellant                                          Decided: February 8, 2017

                                                 *****

        Charles M. Murray and Margaret M. Murray, for appellees.

        Martin T. Galvin, Brian D. Sullivan and Michael P. Murphy,
        for appellant.

                                                 *****

        YARBROUGH, J.

        {¶ 1} This is an appeal from the judgment of the Erie County Court of Common

Pleas, which granted appellees’, James P. Gallagher, Executor of the Estates of Mary

Gallagher and Thomas C. Gallagher, motion for a new trial following a seven-day jury

trial on their medical negligence claim. For the reasons that follow, we reverse.
                         I. Facts and Procedural Background

      {¶ 2} The genesis of this matter began on May 30, 2012, when Mary Gallagher

underwent a procedure at appellant, Firelands Regional Medical Center, to clear blockage

from her left carotid artery. Going into the procedure, Mary, who was 84 years old at the

time, had a baseline blood pressure of 140/58. The procedure was completed without

complication, and Mary entered the Post-Anesthesia Care Unit (“PACU”) at 2:50 p.m.

At that time, her blood pressure was 86/54. Notably, it was expected that her blood

pressure would be low for up to four to five hours following the carotid procedure, and

she was receiving fluids as treatment for the low blood pressure. During the

approximately one hour and fifteen minutes that Mary was in the PACU, her blood

pressure readings were: 96/66, 87/52, 83/51, 83/51, 98/53, 88/51, and 96/49. It is

undisputed that Mary did not see a doctor while she was in the PACU.

      {¶ 3} At 4:05 p.m., Mary was discharged to the floor, and her blood pressure at

4:25 p.m. was 85/46. Mary continued to have systolic blood pressure readings in the 80s

and 90s throughout the rest of the day. However, the nurses testified that Mary was

otherwise asymptomatic, noting that she was alert, was able to get up and move around,

and use the restroom. At 11:30 p.m., a nurse woke up Mary to assess her, at which time

Mary was confused about her surroundings, but the nurse testified that she was easily

reoriented. No doctor was alerted to Mary’s low blood pressure throughout the day.

      {¶ 4} At 1:35 a.m. on May 31, 2012, it was discovered that the left side of Mary’s

face was drooping. In addition, Mary was unable to move her left arm. A stroke team




2.
was called, and fluid was rapidly administered, which raised her blood pressure. Mary

was then transferred to University Hospital. Ultimately, Mary suffered a stroke that

affected the pons on the right side of her brain—among other areas—resulting in

paralysis on the left side of her body.

       {¶ 5} On May 29, 2013, appellees filed their complaint alleging that appellant’s

negligence caused Mary’s stroke. Two central issues emerged in the litigation:

(1) whether appellant’s nurses breached the applicable standard of care, and (2) whether

that breach was the proximate cause of the stroke. This appeal concerns the second issue.

Appellees’ theory is that the prolonged hypotension allowed by appellant’s nurses, in

conjunction with Mary’s existing small vessel disease, caused the stroke. Appellant’s

theory is that Mary’s atrial fibrillation caused a blood clot to form in her heart that was

then pumped to her brain where it fragmented, causing the stroke.

       {¶ 6} Prior to trial, appellees filed a motion in limine to exclude the hearsay

statements included in the University Hospital records, including “the radiologist’s

imaging interpretations or treating physician medical opinions.” Specifically, appellees

sought to exclude Dr. Sophia Sundararajan’s assessment that

              The patient is presenting with left sided weakness in the peri-

       operative setting, with a history of atrial fibrillation, currently in a.fib, and

       off of her Coumadin given the recent fall and SAH. The patient’s stent was

       placed on the left, and given the left sided weakness is not likely a direct




3.
       cause of the weakness. Her atrial fibrillation is strongly suspected as the

       cause of this recent stroke. (Emphasis added.)

The trial court granted the motion on January 27, 2015. On May 14, 2015, it clarified its

ruling to state that, “[T]he court will exclude as impermissible hearsay any testimony by

an expert who testifies as to the opinions of another doctor. * * * [U]nlike the

corresponding Federal Evidence Rule, Ohio rule of Evidence 803(6) does not allow

medical opinion or diagnosis found in records to be admitted into evidence.” Upon

appellant’s further motion for reconsideration, the trial court again affirmed its ruling.

Relying on Hytha v. Schwendeman, 40 Ohio App.2d 478, 320 N.E.2d 312 (10th

Dist.1974), the court reasoned

              This is a medical malpractice case in which often times the decision

       from the jury comes down to a weighing of the expert opinions. Both the

       Plaintiff and Defendant have experts in this case. Such experts are retained

       to review all the records involved and to opine as to the cause of injury.

       Those experts testify subject to cross examination. To allow statements of

       other doctors into evidence without a full review of their qualifications,

       knowledge, experience, familiarity with the facts of this case, and not

       subject to cross examination, would be inconsistent with the rules of

       evidence, especially in regard to an issue central to the entire case.

       {¶ 7} The matter then proceeded to a jury trial over the course of seven days

between May 18 and May 27, 2015. At the trial, Dr. Susan Gallagher, Mary’s daughter,




4.
testified for appellees as a fact witness. During her testimony, a series of questions

unfolded that led to a discussion about Dr. Sundararajan’s opinion as to the cause of

Mary’s stroke. On cross-examination, Susan was asked, over objection:

              Q: [I]sn’t it true that no University Hospital’s doctors ever indicated

       to you that the care received by your mom at Firelands was bad, or

       inappropriate, or negligent?

              ***

              A: Oh. There was no discussion about the care at Firelands

       Hospital.

              Q: Okay. So, as I stated that that’s true, there was no University

       Hospital’s physician that criticized the care your mom received at

       Firelands; true?

              A: There was no discussion either way.

Then, on re-direct, the following exchange took place:

              Q: Then there was some discussion about University Hospitals, and

       the - whether anybody at University Hospital ever suggested to you that the

       stroke was caused by hypertension [sic]; remember that?

              ***

              Q: I’m sorry. He asked a different question, didn’t he?

              A: Right.

              ***




5.
             Q: He asked a question as to whether anybody at UH talked to you

      about why your mom had a stroke, or criticized the care at Firelands

      Hospital, right?

             A: He - he asked whether or not there was a criticism of care at

      Firelands Hospital.

             Q: All right. Did you ever take the - to University Hospitals the

      medical records from the Firelands Hospital so they could see the low

      pressures from [4:25 p.m.] to one - 1:30 in the morning? Did you ever take

      those records to UH?

             A: No. No.

             Q: Did they have that information to your knowledge?

             A: Not that I’m aware of.

             Q: Then did you talk to one of the doctors about whether she had a

      hypotensive episode at Firelands Hospital?

             A: I was asked in the Emergency Room by the neurologist whether

      or not she had had a hypotensive episode.

On re-cross examination, the subject was addressed again:

             Q: So if - you have told us that with respect to your discussion with

      the physician at University Hospitals, there was never a discussion relative

      to the cause of the stroke?

             A: There’s no - I had no discussion.




6.
              Q: There was a question put to you by the - by a physician there as

       to whether your mom had low blood pressure at Firelands?

              A: That’s correct.

              Q: Did you develop a belief as to what the cause of the stroke was

       based upon your discussion with that UH physician?

              A: The question that was asked of me did your mother have a

       hypotensive episode because the stroke appeared to be a watershed stroke.

       {¶ 8} At this point, counsel requested a side-bar to discuss whether appellant could

cross-examine Susan with the University Hospital records showing that Dr. Sundararajan

came to the alternate conclusion that the stroke was likely a result of Mary’s atrial

fibrillation. During the discussion, the parties each argued that the other opened the door

to this line of questioning. Ultimately, over appellees’ objection, the court ruled that

appellant could continue with his examination:

              Q: Doctor, very quickly, I want to go back to this discussion you

       had with a physician at UH, who was that?

              A: I call her Dr. Sophia. I don’t know her last name.

              Q: She was a neurologist?

              A: Yes.




7.
               Q: And you had a discussion with her; correct?

               A: She visited my mom in the emergency room, she was with a

       resident, and med students, and she asked whether or not my mom had had

       a hypotensive episode because it looked like a watershed stroke.

               ***

               Q: Okay. Were you aware that Dr. Sophie was of the opinion * * *

       that the stroke was due to a clot from a-fib?

               A: No.

       {¶ 9} The issue of the University Hospital records briefly arose again with the next

witness, Dr. Gregg Zoarski, who was qualified as an expert in neuroradiology. Zoarski

testified on cross-examination that he was in agreement with some of the report, such as

evidence of diminished flow in the middle cerebral artery, which he testified made her

susceptible to the left middle cerebral artery watershed stroke. Zoarski also testified that

“the history said like A-fib embolic stroke, or that was what the University Hospital staff

were led - it was kind of the story they got. They didn’t have all the information about

her low blood pressure, et cetera.” On re-cross examination, Zoarski continued to testify

that the University Hospital doctors prematurely came to the conclusion that the cause of

the stroke was atrial fibrillation.

       {¶ 10} As to the cause of the stroke, Zoarski testified that it was his belief to a

reasonable degree of medical certainty that Mary’s stroke in the right pons was not

characteristic of a stroke from a clot caused by atrial fibrillation, but rather was




8.
characteristic of “progressive vascular disease exacerbated by prolonged low blood

pressure. Not a big enough channel for blood flow to get through, drop the blood

pressure, that vessel clots off, and we knew she had underlying vascular disease.” In

contrast, appellant’s expert, Dr. James Gebel Jr., who qualified as an expert as a stroke

neurologist, testified that he believed to a reasonable degree of medical certainty that a

blood clot formed in Mary’s heart, most likely due to her atrial fibrillation, which then

fragmented with pieces going up the front and back arteries leading to her brain.

Likewise, appellant’s expert, Dr. Daniel Brotman, who qualified as an expert as a

hospitalist, testified that the stroke “was either caused by atrial fibrillation, or the

underlying vascular disease that she had. It was not to a reasonable degree of probability

caused by hypoperfusion because she was asymptomatic when her blood pressure was

lower, and that is not a watershed area. I’ve never heard of a watershed stroke occurring

in the pons before.”

       {¶ 11} Following the testimony of the witnesses, the parties moved to enter their

exhibits. Relevant here, appellant moved to enter the records from University Hospital,

including those containing the opinion of Dr. Sundararajan that the stroke was likely

caused by atrial fibrillation. Appellees objected. After a lengthy discussion, the trial

court admitted the University Hospital records, reasoning that the records were discussed

during the trial and should go to the jury with all of the other voluminous medical

records.




9.
      {¶ 12} The parties then made their closing arguments. Appellant, during its

closing argument, and over objection, emphasized the opinion of Dr. Sundararajan:

             * * * I would refer you specifically when you look at the University

      Hospital records to Page 6109. When you have the records back in the jury

      room you’re going to see page numbers on the bottom right-hand corner,

      this is going to be at Page 6109 in the University Hospital records,

      important record. This is Dr. [Sundararajan], the stroke neurologist at

      University Hospitals where she says, The patient is presenting with left-

      sided weakness in the perioperative setting, with a history of atrial

      fibrillation, currently in A-fib, and off her Coumadin given the recent fall,

      and subarachnoid hemorrhage. The patient’s stent was placed on the left,

      and given the left-sided weakness is not likely a direct cause of the

      weakness.

             ***

             Dr. [Sundararajan] indicates in her note, her, Mrs. Gallagher’s atrial

      fibrillation is strongly suspected as the cause of this recent stroke.

             So it’s not just Dr. Gebel, it’s not just Dr. Brotman, it’s the

      University Hospital physicians, and I would submit to you, ladies and

      gentlemen, that there is one expert in this case. One. Dr. Zoarski. Just one

      who believes that this stroke was due to low blood pressure. So to believe




10.
       the Plaintiff’s theory of the case, you need to disbelieve Dr. Gebel, Dr.

       Brotman, and now Dr. [Sundararajan] at University Hospitals.

       {¶ 13} Following instructions from the court, the jury retired to deliberate. The

jury returned with a verdict for appellant, with six of the eight jurors finding that

appellant’s nurses breached the standard of care in failing to notify a doctor of Mary’s

prolonged low blood pressure, but unanimously finding that the breach was not a

proximate cause of Mary’s stroke. Notably, in determining that the nurses breached the

standard of care, the jury referenced information in the University Hospital records where

the medical emergency team was called when Mary’s systolic blood pressure was below

90.

       {¶ 14} On June 17, 2015, appellees moved for a new trial pursuant to Civ.R. 59,

arguing that the trial court erred when it allowed the University Hospital records to be

submitted to the jury. Appellees noted that, before the trial, the court properly excluded

the records under Hytha in that they contained the inadmissible hearsay opinion of an

expert witness. Further, appellees argued that a sufficient foundation for the admissibility

of the records was not established as no doctor from University Hospitals testified during

the trial. Finally, appellees argued that they did not “open the door” to the inadmissible

hearsay opinion during their examination of Susan.

       {¶ 15} Appellant opposed the motion for new trial, contending that appellees did

“open the door.” Appellant argued that on re-direct, Susan’s testimony left the

impression that Dr. Sundararajan had the opinion that Mary suffered a watershed stroke




11.
caused by low blood pressure. Appellant asserted that it was thus proper to cross-

examine her with Dr. Sundararajan’s assessment that the stroke was caused by atrial

fibrillation, and therefore also proper to admit the University Hospital records containing

that assessment.

       {¶ 16} On August 10, 2015, the trial court granted appellees’ motion for a new

trial. The court reasoned that it was an error of law to allow appellant to cross-examine

Susan on whether the University Hospital doctors were critical of the care at Firelands,

and to cross-examine Susan with the opinion from Dr. Sundararajan that the stroke was

likely caused by atrial fibrillation. The court further found that appellees did not open the

door, but rather it was appellant that invited Susan to discuss her conversations with Dr.

Sundararajan. Finally, the court found that the error was prejudicial because the jury

relied on the University Hospital records in determining that the nurses breached the

standard of care, and it could not find that it was likely that the jury relied on the records

in the one instance, but ignored them in determining proximate cause. Therefore, the

court concluded that “the trial may very well have had a different outcome.”

                                  II. Assignment of Error

       {¶ 17} Appellant has timely appealed the trial court’s August 10, 2015 judgment,

and now asserts one assignment of error for our review:

                I. The Trial Court Erred by Granting Plaintiffs’ Motion for a New

       Trial.




12.
                                       III. Analysis

       {¶ 18} In this case, the motion for a new trial was granted pursuant to Civ.R.

59(A)(9), which states that a new trial may be granted upon “Error of law occurring at the

trial and brought to the attention of the trial court by the party making the application.”

“Unlike most other instances in which a trial court decides the question of whether to

grant or deny a motion for a new trial, our review of a motion pursuant to Civ.R.

59(A)(9) is de novo, rather than under an abuse of discretion standard.” Ferguson v.

Dyer, 149 Ohio App.3d 380, 383, 777 N.E.2d 850 (10th Dist.2002), citing Rohde v.

Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph two of the syllabus

(“Where a new trial is granted by a trial court, for reasons which involve no exercise of

discretion but only a decision on a question of law, the order granting a new trial may be

reversed upon the basis of showing that the decision was erroneous as a matter of law.”).

“[T]he appellate court will reverse the new trial order when the challenged action was not

error or was not prejudicial.” Sanders v. Mt. Sinai Hosp., 21 Ohio App.3d 249, 252, 487

N.E.2d 588 (8th Dist.1985).

       {¶ 19} In the trial court, the parties spent significant time discussing whether the

other “opened the door” to the improper line of questioning of Susan regarding the

opinion of the University Hospital neurologist. We find these arguments to be

inconsequential as the exchange with Susan itself was insignificant in the context of the

entire trial, which included the testimony of competing expert witnesses as to causation.

Furthermore, although the line of questioning was the hook to introduce the University




13.
Hospital records, “opening the door” is not an exception to the hearsay rule. At most,

were we to determine that appellees did “open the door” by asking Susan about her

conversation with Dr. Sundararajan, it would only permit appellant to cross-examine her

regarding whether she was aware of Dr. Sundararajan’s assessment that the cause of the

stroke was atrial fibrillation. It would not permit appellant to admit the assumedly

inadmissible hearsay medical records from University Hospital. See Hytha v.

Schwendeman, 40 Ohio App.2d 478, 488, 320 N.E.2d 312 (10th Dist.1974) (“That which

is inadmissible because of one evidentiary principle or another, inclusive of the hearsay

evidence rule, is rendered no more the salutary by virtue of such evidence being elicited

upon cross-examination.”).

       {¶ 20} The salient issues then, are (1) whether it was error to admit the University

Hospital records under the business records exception to hearsay contained in Evid.R.

803(6), and (2) if so, whether the error was prejudicial.

       {¶ 21} As to the former, Evid.R. 803(6) excepts from hearsay,

              A memorandum, report, record, or data compilation, in any form, of

       acts, events, or conditions, made at or near the time by, or from information

       transmitted by, a person with knowledge, if kept in the course of a regularly

       conducted business activity, and if it was the regular practice of that

       business activity to make the memorandum, report, record, or data

       compilation, all as shown by the testimony of the custodian or other

       qualified witness or as provided by Rule 901(B)(10), unless the source of




14.
      information or the method or circumstances of preparation indicate lack of

      trustworthiness. The term “business” as used in this paragraph includes

      business, institution, association, profession, occupation, and calling of

      every kind, whether or not conducted for profit.

      {¶ 22} Relevant here, the 1980 staff notes accompanying Evid.R. 803(6) state,

             The Ohio rule departs from the Federal Evidence Rule by deleting

      “opinions and diagnoses” as admissible under this section. It is not clear

      how far present Ohio law permits such evidence to be admitted. In Hytha

      v. Schwendeman, (1974), 40 Ohio App.2d 478, 69 Ohio Op. 2d 419, 320

      N.E.2d 312, the Franklin County Court of Appeals set forth seven criteria

      for a diagnosis to be admissible when contained in a hospital record. The

      Hytha case may retain validity in so far as it may assist in determining the

      point at which, in medical records, an act, event or condition admissible

      under the exception becomes an impermissible opinion or diagnosis under

      the rule.

      {¶ 23} In Hytha, the Tenth District formulated a list of seven factors that must be

present before the record of a medical diagnosis made by a physician may be admitted

into evidence:

             (1) The record must have been a systematic entry kept in the records

      of the hospital or physician and made in the regular course of business;




15.
              (2) The diagnosis must have been the result of well-known and

       accepted objective testing and examining practices and procedures which

       are not of such a technical nature as to require cross-examination;

              (3) The diagnosis must not have rested solely upon the subjective

       complaints of the patient;

              (4) The diagnosis must have been made by a qualified person;

              (5) The evidence sought to be introduced must be competent and

       relevant;

              (6) If the use of the record is for the purpose of proving the truth of

       matter asserted at trial, it must be the product of the party seeking its

       admission;

              (7) It must be properly authenticated. Hytha at syllabus.

       {¶ 24} Three lines of thought regarding the admissibility of medical opinions and

diagnoses under Evid.R. 803(6) have emerged.

       {¶ 25} At one end of the spectrum, a few appellate districts have held that

“Evid.R. 803(6) does not allow for opinions and diagnoses found in business records to

be admitted into evidence.” Guarino-Wong v. Hosler, 1st Dist. Hamilton No. C-120453,

2013-Ohio-1625, ¶ 15, quoting Meyers v. Hot Bagels Factory, 131 Ohio App.3d 82, 101,

721 N.E.2d 1068 (1st Dist.1999). See also Bush v. Burchett, 4th Dist. Scioto No.

94CA2237, 1995 Ohio App. LEXIS 2488 (June 13, 1995) (trial court erred in allowing

expert to read a letter from another doctor expressing that doctor’s diagnosis and




16.
opinion). Notably, these decisions do not discuss the Hytha factors, or their applicability

to Evid.R. 803(6).

       {¶ 26} In the middle, several other districts, while stating that “the great weight of

authority in Ohio holds that medical opinions and diagnoses are not within the hearsay

exception of Rule 803(6),” nonetheless apply the seven-factor test in Hytha to determine

the admissibility of medical records on a case-by-case basis. Williams v. Minute Men

Select, Inc., 5th Dist. Tuscarawas Nos. 2016 AP 03 0016, 2016 AP 04 0020, 2016-Ohio-

7509, ¶ 23 (trial court properly excluded medical records of non-testifying doctors who

diagnosed or assessed the patient as having reflex sympathetic dystrophy syndrome). See

also Jefferson v. Careworks of Ohio, Ltd., 193 Ohio App.3d 615, 2011-Ohio-1940, 953

N.E.2d 353, ¶ 10-13 (10th Dist.) (letter from doctor to lawyer contained in medical

records properly excluded); Ruth v. Moncrief, 2d Dist. Montgomery No. 18479, 2001

Ohio App. LEXIS 4886 (Nov. 2, 2001) (prejudicial error existed where trial court

admitted medical records containing opinions and diagnoses where several of the Hytha

factors were not met); Preston v. Lathrop Co., 6th Dist. Lucas No. L-04-1129, 2004-

Ohio-6658, ¶ 18 (trial court erred in admitting medical records where they did not meet

the first Hytha factor, but the error was not prejudicial).

       {¶ 27} Finally, at the other end of the spectrum, the Eighth District in Smith v.

Dillard’s Dept. Stores, 8th Dist. Cuyahoga No. 75787, 2000 Ohio App. LEXIS 5820

(Dec. 14, 2000), examined Hytha and limited the application of its seven factors. The

court noted that Hytha held, “[A] medical diagnosis, made by a qualified physician and




17.
contained in an otherwise duly authenticated record, is admissible if that statement falls

within the general principle of the law of evidence, where such a diagnosis would be

admissible if testified to in open court by the person who made the record.” Smith at *15,

quoting Hytha, 40 Ohio App.2d at 483, 320 N.E.2d 312. The court also noted Hytha’s

instruction that

              [T]he overriding consideration is that such diagnosis must be

       contained either in the records of a hospital, in which records the diagnosis

       is a systematic entry made in the regular course of the business of the

       hospital, or the diagnosis must have been entered within the records of the

       physician making such diagnosis and the diagnosis must be shown to have

       been entered, and the record kept, within the regular course of the business

       of the physician. Smith at *16, quoting Hytha at 483.

       {¶ 28} The Eighth District then examined the history of R.C. 2317.40, which is

Evid.R. 803(6)’s statutory counterpart, and determined that the omission of “opinions and

diagnoses” should not be construed as indicative of an intent to change the principles of

Ohio common law. Smith at *23. In reaching this result, the Eighth District cited the

comments to Fed.R.Evid. 803(6), which relied in part on Weis v. Weis, 147 Ohio St. 416,

72 N.E.2d 245 (1947) as grounds for including “opinions and diagnoses.” In Weis, the

Ohio Supreme Court held,

              [T]hose portions of hospital records made in the regular course of

       business and pertaining to the business of hospitalization and recording




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       observable acts, transactions, occurrences or events incident to the

       treatment of a patient are admissible, in the absence of privilege, as

       evidence of the facts therein recorded, insofar as such records are helpful to

       an understanding of the medical or surgical aspects of the case, and insofar

       as relevant to the issues involved, provided such records have been

       prepared, identified and authenticated in the manner specified in the statute

       itself. * * *

              Such a hospital or physician’s office record may properly include

       case history, diagnosis by one qualified to make it, condition and treatment

       of the patient covering such items as temperature, pulse, respiration,

       symptoms, food and medicines given, analysis of the tissues or fluids of the

       body and the behavior of and complaints made by the patient. Weis at 424-

       425.

       {¶ 29} Thus, the Eighth District concluded that “‘opinions’ and ‘diagnoses’

contained within medical reports or records fall within the business records hearsay

exception of Evid.R. 803(6).” Smith at *25-26. “As such, the rules announced in Weis

and Hytha ‘supplement’ Evid.R. 803(6) to the extent they: (1) apply to the admissibility

of medical records and their contents; and (2) have not been otherwise superceded by

other evidentiary rules.” Id. at *26.

       {¶ 30} In Reneau v. Con-Way Transp. Servs., 6th Dist. Wood No. WD-07-003,

2007-Ohio-6368, we applied this line of reasoning. In Reneau, the disputed evidence was




19.
hospital records containing a psychiatric diagnosis. In our analysis, we cited the holding

of Hytha that a medical diagnosis in a hospital record is permissible where “such a

diagnosis would be admissible if testified to in open court by the person who made the

record,” and the record is “that of the physician making the diagnosis and [has] been

made in the regular course of business.” Id. at ¶ 32, quoting Hytha, 40 Ohio App.2d at

483, 320 N.E.2d 312. In addition, we relied on Smith’s emphasis that “the primary

determinative consideration is whether the diagnosis was contained in a hospital record

which would contain such information in the regular course of business.” Id. at ¶ 35. We

concluded that the records were reliable, and that the diagnosis was of the type that would

ordinarily be contained in such records. Therefore, we held that the trial court did not err

in allowing them to be entered without redaction. Id.

       {¶ 31} Turning to the present case, we are inclined to follow our most recent

decision in Reneau. Here, the parties do not dispute that Dr. Sundararajan’s assessment

that atrial fibrillation was the likely cause of the stroke would be admissible if she

testified in open court.1 Further, the parties do not dispute that Dr. Sundararajan created


1
  Although not specifically raised by the parties, we note that it is questionable whether
Dr. Sundararajan’s assessment that “atrial fibrillation is strongly suspected as the cause of
this recent stroke” meets the standard of probability required for medical expert
testimony to be admissible under Evid.R. 702. See Shumaker v. Oliver B. Cannon &
Sons, Inc., 28 Ohio St.3d 367, 374, 504 N.E.2d 44 (1986) (“This court has clearly stated
that medical testimony on the issue of causation should be stated in terms of the
probability of the causal relationship.”); Butler v. Minton, 6th Dist. Erie No. E-05-061,
2006-Ohio-4800, ¶ 17 (“Parties typically ask expert witnesses to state their opinions in
terms of a ‘reasonable degree of medical certainty’ or a ‘reasonable degree of medical
probability.’ However, experts need not use these ‘magic words;’ the expert’s opinion is




20.
the record in the regular course of business. Although appellees argue that the records

need to be further authenticated, R.C. 2317.422 provides,

              [T]he records, or copies or photographs of the records, of a hospital,

       * * * in lieu of the testimony in open court of their custodian, person who

       made them, or person under whose supervision they were made, may be

       qualified as authentic evidence if any such person endorses thereon the

       person’s verified certification identifying such records, giving the mode and

       time of their preparation, and stating that they were prepared in the usual

       course of the business of the institution.

The records in this case contained such a certification from Alan Bratnick, Manager of

Health Information Services. Therefore, we hold that it was not error to admit the

University Hospital records.

       {¶ 32} Nevertheless, even if it was error to admit those records, such error was not

prejudicial in this case. On the issue of prejudice, appellees contend that through the

University Hospital records appellant was able to introduce the testimony of a new expert

witness, Dr. Sundararajan, without subjecting her to cross-examination. Further,

appellees argue that the jury relied on the University Hospital records in its deliberations

as evidenced by its response in the jury interrogatories on the question of whether the


admissible as long as it provides evidence of ‘more than mere possibility or
speculation.’”). However, we need not resolve this question because, as will be discussed
below, appellees were not prejudiced by the admission of the University Hospital records
containing Dr. Sundararajan’s assessment.




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nurses breached their standard of care. Thus, appellees conclude that the trial court was

justified in granting their motion for a new trial.

       {¶ 33} We disagree. In this case, the cause of Mary’s stroke was one of the central

issues. As noted by appellant, several expert witnesses testified as to causation over the

course of several days. For appellant, Dr. Gebel and Dr. Brotman testified that the stroke

was likely caused by atrial fibrillation, and was not caused by low blood pressure. For

appellees, Dr. Zoarski testified that the stroke was caused by prolonged low blood

pressure in conjunction with Mary’s progressive vascular disease, and was not caused by

atrial fibrillation. All of the experts testified extensively and were subject to rigorous

cross-examination on their theories.

       {¶ 34} Furthermore, although Dr. Sundararajan’s assessment that atrial fibrillation

was strongly suspected as the cause of the stroke was not subject to cross-examination, an

attempt was made to discredit her opinion through Susan’s testimony that, to her

knowledge, Dr. Sundararajan did not know about or have the medical records showing

the prolonged hypotensive episode, and Zoarski’s testimony that the University Hospital

physicians reached a premature conclusion without having all of the information.

       {¶ 35} Thus, in light of all of the testimony at trial, we cannot conclude with any

degree of probability that the additional opinion of Dr. Sundararajan contained in the

University Hospital records caused the jury to reach a different result than it otherwise

would have if the records had been excluded. Therefore, because we find that the




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admission of the University Hospital records was not prejudicial to appellees in this case,

we hold that the trial court erred in granting appellees’ motion for a new trial.

       {¶ 36} Accordingly, appellant’s assignment of error is well-taken.

                                      IV. Conclusion

       {¶ 37} For the foregoing reasons, the judgment of the Erie County Court of

Common Pleas is reversed, and the August 10, 2015 judgment granting a new trial is

hereby vacated. Pursuant to App.R. 24, appellees are ordered to pay the costs of this

appeal.


                                                                         Judgment reversed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Thomas J. Osowik, J.                            _______________________________
                                                            JUDGE
Stephen A. Yarbrough, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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